boe vs uft 3020-a arbitrator lawsuit - all papers filed

SUPREME COURT OF THE STATE OF NEW YORK

::i:::_:Ì"_yl:Y .........._x

BOARD OF EDUCATION OF THE CITY SCHOOLDISTRICT OF THE CITY OF NEV/ YORK, INDEX NO.

Plaintift DateFiled: September26,2013

-against-

LTNITED FEDERATION OF TEACHERS,SUMMONS

Defendant

YOU ARE HEREBY SUMMONED to answer the complaint in this action and

to serve a copy of your answer on the PlaintifPs attorney within 20 days after the service of this

summons, exclusive of the day of service (or within 30 days after the service is complete if this

summons is not personally delivered to you within the State of New York); and in case of your

failure to appear or answer, judgment will be taken against you by default for the relief

demanded in the complaint.

The basis for venue is the place of Defendant's business and the county in which

FILED: NEW YORK COUNTY CLERK 09/26/2013 INDEX NO. 451734/2013

NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/26/2013

the action arose pursuant to CPLR 504(3), which is New York County.

Dated: New York, New YorkSeptember 26,2013

MICHAEL A. CARDOZOCorporation Counsel of the

City of New YorkAttorney for Plaintiff100 Church Street, Room 2-143New York, New York 10007-2601(212) 3 72

By:

Assistant Counsel

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::it:::v_Yt:li ...........x

BOARD OF EDUCATION OF THE CITY SCHOOLDISTRICT OF THE CITY OF NEV/ YORK,

Plaintift

-against-

LINITED FEDERATION OF TEACHERS,

Defendant.

COMPLAINT

Index No.

Plaintiff, Board of Education of the City School District of the City of New York

("DOE"), by and through its attorney Michael A. Cardozo, Corporation Counsel of the City of

New York, as and for its complaint against Defendant United Federation of Teachers, alleges as

follows:

1. This action seeks a determination that the United Federation of Teachers

("UFT") has violated a validly enforceable agreement between the DOE and the UFT which

increased the number of arbitrators (also referred to as "hearing offrcers") who sit on a rotational

panel. Arbitrators from this panel preside over disciplinary hearings held as a result of

disciplinary charges brought by DOE against nonsupervisory pedagogical personnel pursuant to

New York Education Law Section3020-a.

2. Under New York Education Law Section3020, the DOE and the UF-T are

authorized to modify, by agreement, the disciplinary procedures set forth under Education Law

Section 3020-a, including, but not limited to, the procedures by which disciplinary charges are

filed and adjudicated, as well as the procedures for disciplinary hearings and the selection of

arbitrators.

3. The UFT has breached such a valid and enforceable agreement, entered

into between the parties, that acts, inter alia, to modify the arbitrator selection process set forth

in Education Law Section 3020-a(3).

4. The UFT has continually failed to agree to a full panel of 39 arbitrators as

mandated by the agreement.

5. Where, as here, a full panel has not been agreed upon, an alternative

arbitrator selection process, utilizing a third-party, is available. However, the UFT has now

refused to participate even in this alternative arbitrator selection process provided for in the

agreement.

6. The UFT's failure to agree violates the explicit terms of the parties'

agreement, and frustrates the agreement's stated purpose the timely adjudication of

disciplinary charges to obviate the backlog of disciplinary cases, which unnecessarily impacts

schools, students, and, as most charged employees remain on payroll throughout the disciplinary

process, the DOE's measured fiscal resources.

7. Moreover, as this agreement serves to modify the disciplinary procedures

under Education Law Section3020-a, the UFT's twofold refusal -- to either agree to a full panel

or to engage in the very process designed to resolve such disagreement -- thwarts the express

statutory imperative of that provision: the expeditious adjudication of accusations of misconduct

and incompetence against individuals charged with the education of children in New York City

public schools.

THE PARTIES

8. Plaintiff DOE is organized under and exists pursuant to the New York

State Education Law, and maintains its principal place of business in New York County.

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9. Defendant UFT is an unincorporated labor organization that is the

recognized bargaining agent for all nonsupervisory pedagogical personnel and classroom

paraprofessionals employed by the DOE,

THE APRIL LETTER AGREEMENT

10. The DOE and the UFT are parties to a letter agreement, dated April 15,

2010 (the "April Letter Agreement"). A copy of the April Letter Agreement is annexed hereto as

Exhibit ("Ex.") "1."

1 l. The April Letter Agreement sets forth, and otherwise memorializes,

various accords between the DOE and the UFT conceming the procedures for investigating

alleged acts of pedagogical personnel misconduct and adjudicating any resulting disciplinary

charges against personnel brought pursuant to Education Law $ 3020-a.

12. In reaching the April Letter Agreement, the DOE and the UFT sought to

expedite the process by which disciplinary charges are adjudicated, thereby averting lengthy

delays, reducing the large backlog of disciplinary cases, and ensuring compliance with the

procedures set forth in the parties' collective bargaining agreement ("CBA") and the

requirements mandated by Education Law Section 3020-a.

13. Under Education Law Section 3020, the DOE and the UFT may modify

by agreement the procedures set forth in Education Law Section 3020-a and, "[w]here such

procedures are so modified , . compliance with such modified procedures shall satisfy any

provision of this chapter that requires compliance with section 13020-al of this article."

Education Law $ 3020()(a).

14. Indeed, and as authorized by Education Law Section 3020, Article 2l(G)

of the parties'CBA expressly pertains to "Education Law $ 3020-a Procedures," and provides

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that "[t]enured teachers facing disciplinary charges filed . . . will be subject to Section 3020-a of

the Education Law as modified by paragraphs 1-10 below."

15. Under Article 21(G) of the CBA, the DOE and UFT have established a

rotational panel of arbitrators, (referred to in the April Letter Agreement as "hearing officers").

Arbitrators from this panel preside over pedagogical personnel disciplinary cases, conduct the

evidentiary hearings held pursuant to Education Law $ 3020-a, and, when hearings have

concluded, determine whether charges were sustained and, as warranted, assess an appropriate

penalty to be imposed by the DOE.

16. Under the April Letter Agreement, the DOE and the UFT agreed that the

number of arbitrators on the rotational panel would be increased as follows:

Incompetence Cases shall be heard by a panel of 14

hearing officers.

Misconduct Cases shall be heard by a panel of 25hearing officers.

April Letter Agreement, Ex. "1," at 6.

17. The April Letter Agreement further provides that

Representatives of the UFT and DOE shall meetmonthly, or less frequently if the UFT and DOEagree, for the first year of this Agreement and atleast twice a year thereafter (i) to agree on thenumber of hearing offlrcers hearing expedited cases,(ii) to discuss the appropriateness of the number ofhearing officers, including the possibility ofagreeing to increase or decrease the number ofhearing officers on either the incompetence ormisconduct panels on either a temporary orpermanent basis, and (iii) to discuss theappropriateness of the number of probable causearbitrators, including the possibility of agreeing toincrease or decrease the number of probable causearbitrators. If the DOE believes there is a need formore hearing officers to comply with the timelinesset forth in this Agreement, it shall request that the

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UFT agree to increase the number of hearingofficers and the UFT shall not unreasonably deny an

increase,

April Letter Agreement, Ex. "1," at7.,

THE UFT'S BREACH OF THE APRIL LETTER AGREEMENT

18. At no time since the parties' entered into the April Letter Agreement have

there been a full panel of 39 arbitrators, despite repeated insistence from the DOE.

19. In 201 1-2012, DOE and UFT were able to seat 24t arbitrators. In 2012-

2013, DOE and UFT were able to seat 20 arbitrators, However, all of these arbitrators were not

seated at the same time, and some did not serve the full school year.

20. Beginning in July 2013, given the failure to reach a full panel in the prior

years, a consequent preexisting backlog, and the anemic pace at which selections had proceeded,

due to the UFT's intransigent delay, the DOE sought to expedite the selection process, with no

SUCCESS

21. By letter, dated September 19,2013, Dennis M. Walcott, Chancellor of

DOE ("Chancellor Vy'alcott"), wrote to Michael Mulgrew, President of the UFT, with respect to

the number of arbitrators who will hear disciplinary cases under Education Law $ 3020-a for the

2013-2014 school year. A copy of the September 19,2013,letter is annexed hereto as Exhibit

,r2.r,

22. Chancellor Walcott advised that, under the April Letter Agreement, the

"parties agreed to create two panels of a total of 39 arbitrators to hear 3020-a cases (25 for

misconduct and 14 for incompetence)," and noted that "[t]o date, only 18 arbitrators have been

' The 201 l-2012 panel decreased to 18 arbitrators due to resignations,

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appointed to the 3020-a panels, far below what was agreed to by the parties." September 19,

2073,letter, E;x. "2," at I (emphasis supplied).

23. Chancellor Walcott further advised that

the delays caused by the UFT and [New York State

United Teachers] for this school year, as well as inprior years, undermine the intent of the April 2010Letter Agreement, and have caused a backlog todevelop and continue to grow. The current backlogof hearings needing assignment to an arbitrator farexceeds the number of cases that could be heard in aschool year by 18 arbitrators. The arbitratorsassigned to hear misconduct cases already haveseveral cases assigned to them. Additional cases

are being prepared to be charged or have beencharged and will need to be assigned to arbitrators,fuither increasing their caseloads. Likewise, thearbitrators handling incompetence cases aheadyhave cases assigned to them. Adding additionalcases to the arbitrators' calendars directly impactsthe ability to resolve cases in accordance with thetimelines in the collective bargaining agreement, itsamendments and the Education Law.

September 19, 2073, letter, F,x. "2," at L

24. The reduction and future prevention of this backlog, as well as compliance

with statutorily mandated timeframes, were express justifications for the DOE and the UFT to

increase the arbitrator panel from 20 arbitrators, fixed under Article 2l(G) of the parties' CBA,

to 39 arbitrators, provided under the April Letter Agreement.

25. In his September 19,2013,letter, Chancellor Walcott noted that the UFT's

"continued failure" to agree to a full complement of arbitrators had delayed "timely adjudication

of charges," resulting in untenable salary and benefit costs to the DOE. See September 19, 2013,

letter, 8x, "2," at 7,

26. Moreover, Chancellor V/alcott observed that the

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UFT's actions appear motivated by a desire to forcethe DOE to agree to a modification of the AprilLetter Agreement which would reduce the totalnumber of arbitrators assigned to hear 3020-a cases

to a number well below that in the April LetterAgreement. The reduction in the number ofarbitrators sought by the UFT would result in a

panel that is entirely inadequate to address theexisting backlog of 3020-a cases and will ensurethat there will be a backlog of 3020-a cases goingforward.

September 19,2013,letter, F,x. "2," at 7-2.

27. Chancellor V/alcott advised the UFT, in his September 19, 2013, letter,

that "it is critical that additional arbitrators be selected immediately in order that hearings can

commence and we can keep the backlog from growing." September 19,2013, letter, Ex."2," at

2. Further, Chancellor Walcott noted that, in an attempt to resolve the issue, the DOE and UFT

had discussed a possible decrease to the number of arbitrators, for the 2013-2014 school year,

with the DOE offering to seat 30 arbitrators, for the present school year only, Id.

28. Under Article 2l(G)(2) of the CBA, which, by its terms, modifies the

disciplinary procedures set forth in Education Law Section3020-a, in the event that the DOE and

UFT cannot agree to a full complement of arbitrators on the arbitration panel, "additional

impartial arbitrators shall be selected by the parties in accordance with the American Arbitration

Association (AAA) procedures (strike and rank method) from list(s) provided by the AAA until

the desired number , . . is reached to establish such permanent panel,"

29. Accordingly, in the closing paragraph of his September 19,2073, letter,

Chancellor Walcott sought the UFT's immediate confirmation that the DOE would agree to a

panel of 30 arbitrators, and that the selection of all remaining arbitrators would be completed by

October 4,2013. If the UFT failed to agree, Chancellor Walcott advised, the DOE would

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pursue all legal remedies available to it including,but not limited to, invoking its right under thecollective bargaining agreement to use the arbitratorselection process provided by the AmericanArbitration Association (AAA) procedures.

September 19,2073,letter, F;x. "2," at 2 (footnote omitted),

30. By letter, dated September 20, 2013, Michael Mulgrew responded on

behalf of the UFT to Chancellor Walcott's September 19,2013,letter. A copy of the September

20,2013, letter is annexed hereto as Ex. "3."

31. In that letter, despite declaring the UFT's avowed commitment to the

terms of the April Letter Agreement, the UFT failed to mention, much less agree to, either the

DOE's proposed panel of 30 arbitrators, or an adherence to a October 4,2073, deadline for full

panel arbitrator selection. The UFT's letter studiously ignored these subjects, and instead

focused on its stated preference for a mediation process, in lieu of disciplinary hearings, as well

as the UFT's view -- previously expressed, as noted in Chancellor Walcott's September 19,

2013,letter -- that the UFT believed the panel required fewer arbitrators. See September 20,

2013,letter, which is annexed hereto as Ex, "3."

32. Accordingly, as the UFT's September 20,2073, letter made clear that the

parties cannot agree to a full complement of panel members, by letter, dated September 23,2013,

the DOE wrote to the American Arbitration Association ("AAA"), pursuant to CBA Article

2l(G)(2), to request its assistance in f,rlling the panel of arbitrators that preside over Education

Law $ 3020-a hearings. A copy of this letter, dated September 23, 2013, from Courtenaye

Jackson-Chase, DOE General Counsel, to Jeffrey T. Zaino, AAA, is annexed hereto asÐx. "4."2

2 The September 23'd letter, includes, as an exhibit, the portions of the CBA cited herein

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33. On September 24,2013, the AAA advised the DOE and the UFT that it

would hold a conference call on September 26, 2013, and likely could begin the alternative

selection process on September 27,2013.

34. By letter, dated September 24, 2013, the UFT advised the AAA -- and

DOE -- that "there is no need for AAA involvement in the selection process and that [DOE's]

request is in violation of the applicable collective bargaining agreements." UFT letter, dated

September 24,2073, from Adam S. Ross, UFT General Counsel, to Jeffrey T. Zaino, AAA,

annexed hereto as Ex. "5."

35. The UFT's September 24rh letter suggested that the parties had yet to reach

the point at which agreement on arbitrators had failed and, incredibly, asserted that as the parties

had agreed to fourteen arbitrators for the 2013-2014 school year panel, and because lists

proposing twenty additional names of arbitrators had been exchanged, "there is no reason to

believe that additional mutually agreeable arbitrators cannot be selected. . . ." UFT letter, Ex.

u5r" at2.

36. Yet, even assuming an unlikely consensus on the twenty proposed names,

with only fourteen arbitrators agreed upon, rudimentary math shows that the number required for

a full panel -- 39 -- will not be reached.

37. Moreover, the UFT's September 24th letter purposely ignores critical

details, thereby proffering a rosier scenario than reality presents.

38. Accordingly, by subsequent letter, dated September 25,2013, to the AAA,

the DOE responded to the UFT's misleading assertions, and clarified -- and contextualized -- the

past and present status of arbitrator selection. A copy of this letter, dated September 25,2013,

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from Courtenaye Jackson-Chase, DOE General Counsel, to Jeffrey T. Zaino, AAA, is annexed

hereto as Ex. "6."

39. Among other things, the DOE informed AAA as follows:

The last time that the UFT and DOE were able tomutually agree and select a panel of arbitrators wasduring the 2010-2011 school year. Pursuant to theApril 15, 2010 agreement, both the DOE and theUFT selected and empaneled the full complementof 39 arbitrators during that school year. We have,however, been unable to agree on the selection of39 panel members in subsequent school years 2011-2012 and 2012-2013. The inability to jointly selecta full panel has contributed to the current backlog ofwell over 400 cases, with employees waiting manymonths before their disciplinary cases can be heard,well over the 60 days mandated by the EducationLaw and the April 15, 2010 agreement.

September 25,2013, letter, Ex. "6."

40. The DOE fuither corrected the notable misperception caused by the UFT's

assertions to the AAA:

V/hile it is true that during the 2012-2013 schoolyear, the DOE and UFT invited 14 arbitrators to thepanel, it is imperative to note that only 5 arbitratorsaccepted the invitation. This year, a total of 14were invited and thus far only 7 have accepted.This month, the DOE and UFT proposed arbitrators,but none have been invited as the UFT has notagreed as to when they will be ready to moveforward with the selection ptocess. At the currentrate of proposal and selection we will be well withinthe next school year before a panel is seated. Thisis unacceptable, as, in addition to the large backlogof cases, the DOE already has more than 150 casesto move forward through the 3020-a process thisyear and it is only September.

September 25, 2013, letter, Ex. "6."

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41. Thus, the DOE reiterated its request to the AAA for assistance, under its

procedures, in filling the full arbitrator panel

It is clear that the parties have not been able toreach agreement in seating the full complement ofarbitrators for the 3020-a panel for the past twoschool years and there is no reason to expect thatthis year will be any different. V/e must act swiftlyto seat a full panel to comply with the letter andspirit of the April l5th agreement, and we againrequest that the AAA, in accordance with theagreed-upon procedures for arbitrator selection forEducation Law 3020-a hearings with the UFT,commence the strike and rank process until the 39arbitrators are selected for the panel.

September 25, 2013, letter, Ex. "6."

42. On September 26,2013, the AAA advised DOE that, because the UFT did

not consent to utilizing the AAA process to seat a full panel, the AAA would not proceed.

43. The UFT's continual failure to agree to a full compliment of arbitrators

has resulted in a backlog of approximately 400 cases.

44. Pursuant to the CBA, and the April Letter Agreement, while awaiting their

disciplinary hearing and pending the arbitrator's ultimate post-hearing determination,

nonsupervisory pedagogical personnel continue to receive full salary and benefits, with

exceptions only for certain serious misconduct and sexual offenses involving students or minors.

45. Thus, by failing to agree to a full arbitrator panel, the UFT grossly delays

the adjudication of disciplinary cases, and causes an untenable backlog of charged personnel,

awaiting hearings -- for months on end -- during which time they are entitled to full salary and

benefits,

46. This harms the interests of schools, students, other teachers, and the DOE.

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47, The DOE's invocation of the alternative selection process, utilizing the

AAA's strike-and-rank procedure, will ensure the prompt selection of a full complement of

arbitrators for the panel, and, once established, will further ensure compliance with the mandates

of Education Law Section 3020-a.

AS AND FOR A FIRST CAUSE OF ACTION

48, Plaintiff repeats and realleges each and every allegation set forth in

paragraphs numbered "l" through"4T" as if fully set forth herein.

49. The UFT has breached the April Letter Agreement by continually refusing

to agree to a full panel of arbitrators, thereby delaying timely adjudication of disciplinary charges

against DOE employees and, resultantly, imposing additional salary and benefit costs on the

DOE, a needless tax on its limited budgetary resources.

50. Moreover, the April Letter Agreement and the provisions set forth in

Article 2l(G) of the CBA constitute express agreements between the DOE and the UFT to

modify the disciplinary procedures contained in Education Law Section 3020-a, as authorized by

Education Law Section 3020. Thus, the UFT's refusal to participate in the alternative selection

process, outlined in Article 2I(G)(2) of the CBA, and previously practiced by the parties,

constitutes not only a breach of contract, but also a violation of proceclural agreements

functionally equivalent, by virtue of Education Law Section 3020, to statutory mandates.

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Dated:

WHEREFORE, Plaintiff DOE demands judgment:

a, Adjudging, determining, and declaring that the UFT breached the April

Letter Agreement and CBA Article 2l(G)(2);

b. Directing the UFT to participate in good faith, and pursuant to CBA

Article 2l(G)(2), in selecting additional impartial arbitrators in

accordance with the American Arbitration Association (AAA) procedures

(strike and rank method) from list(s) provided by the AAA until 39

arbitrators are selected to establish the parties' permanent panel.

c. Such other, further, and different relief as this Court may deem just and

proper, together with the costs, including attorneys' fees, and

disbursements of this action.

New York, New YorkSeptember 26,2013

MICHAEL A. CARDOZOCorporation Counsel of the

City of New YorkAttorney for Plaintiff100 Church Street, Room 2-143New York, New York 10007-2601(212) 356-2472

By:

Counsel

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MICHAEL A, CARDOZOCorporalion Counsel

Tne Crv oF NEW YonrLaW DnpnRTMENT

IOO CHURCH STREETNEW YORK, NY IOOOT

MAX\ryELL D. LBIGHTONphone: (212) 356-2472

fax: (212) 788-8877email : [email protected], gov

September 26,2013

Supreme Court of the State of New YorkCounty of New York60 Centre StreetNew York, New York 10007Attn: County Clerk

Re the Ci DFederation of Teachers

To Whom It May Concern

Please accept this summons and complaint for filing and issue an index numberwithout fee, and mark the same as acceptable for filing. This fee exemption is being claimedpursuant to CPLR $ 8019(d).

Thank you for your cooperation.

Sincerel

Assistant Corporation Counsel



Department ofEducatlonDennis M, Walcott, Chancellor

Office of the Ghancellor62 Chambers Sfreet I New York I NY 10007

2125740200 lel I 2123746680 faxdmwalcotl(Dsohools.nyc,gov emdl

September 19,2013

Michael Mulgrew, PresidentUnited Federation of Teachers52 BroadwayNew York, New York 10004

Dear Mr. Mulgrow,

As you know, at the close of the last school year we again began discussing the number

of arbitrators who will hear disciplinary cases under Education Law section 3020-a for the 2013-2014 school year. Pursuant to the collective bargaìning agreement and lEtter agreement dated

April 15,2010 (the "April Letter Agreement"), the parties agreed to create two panels of a totalof 39 arbiüators to hear 3020-a cases (25 for misconduot and 14 for incompetence).

To date, only 18 arbitrators have been appointed to the 3020-a panels, far below whatwas agreed to by thè parties. The delays caused by the UFT and NYSUT for this school yeaÍ, as

well as in prior years, undermine the intent of the April 2010 Letter Agreement, and have caused

a backlog to develop and continue to grow. The cunent backlog of hearings needing assignmentto an arbitrator far exceeds the number of oases that could be heard in a school year by 18

arbitrators. The arbitrators assigned to hear misconduot oases already have several cases

assigned to them. Additional cases are being prepared to be charged or have been charged and

will need to be assigned to arbitrators, further increasing their caseloads. Likewise, thearbitrators handling incompetence cases already have cases assigned to them. Adding additionalcases to the arbitrators' calendars direotly impacts the ability to resolve cases in accordance withthe timelines in the collective bargaining agreement, its amendments and the Education Law.

The continuing failure to have a full panel of arbitrators in place is having an

unacceptable impact on our schools, This is unfair to our principals, to other teachers in our''"schoölsiand'most-impÕftantly;"to'our-'students;"-{here-is'a''backlog"'oÊteachers'who''have"been'- "" '

charged and, in the Department's opinion, should be terminated from employment with theDepartment, Although the UFT agreed to expedite the adjudication of such charges, itscontinuing failure to agree to a full panel of arbitrators not only delays timely adjudioation ofoharges for these teachers but, also, results in an extended reassignment period during which theDepaftrnent is required to pay such teachers full pay and benefits; in short, creating long-term,costly, de facto indivìdualized reassignment centers.

The UFT's aotions appear motivated by a desire to force the DOE to agree to a

modification of the April Letter Agreement which would reduce the total number of arbitrators



assigned to hear 3020-a cases to a number well below that in the April Letter Agreement. Thereduction in the number of arbitrators sought by the UFT would result in a panel that is entirelyinadequate to address the existing baoklog of 3020-a oases and will ensure that there will be abacklog of 3020-a cases going forward,

In an attempt to resolve this issue, the parties discussed the possibility of decreasing thenumber of arbitrators to hear 3020-a cases for the ounent sohool year only. To this end, onMonday September 75,2013, the Department ofiered to seat 30 arbihators for the2O73-2014sohool year only. At that time, the UFT, through NYSUT, asserted that only 24 arbitators wereneeded. You informed us that you would review our proposal and inform us whether you can

agree to 30 arbitrators.

Even though the Department maintains that the backlog would not be eliminated if wereduce the number of arbitrators, it is critical that additional arbihators be selected immediatelyin order that hearings can commence and we can keep the backlog from growing, Thus, we seekyour confirmation by the close of business tomorrow, September 20, 2073, that the UFT willagree to a panel of 30 arbiûators, with selection to be completed in accordance with the terms ofthe contract by October 4,2073, Should the UFT fail to agree to this, the DOE will pursue alllegal remedies available to it including, but not limited to, invoking its right under the collectivebargaining agreement to use the arbitræor selection process provided by the AmericanArbitration Association (AAA) proceduresr.

Sincerelv.

Õ,_ ^-ì)-u¡r

Dennis M. WalcottChancellor

t Where the parties cannot agree to a full complement of panel members, additional impartial arþitratorsshall be selected by the partles in accordance with the American Arþitration Association (MA)procedures (strike and rank method) from llst(s) provided by the ARn untll the desired number is reachedto establish such perrnanent panel,

^ña.UFT

Unlted Federat¡on of Teach€rsAUnhtolFÞ/N,,ø4È

September 20,2013

Denris WalcottChancellorCity School District of the City of New York52 Chambers StreetNew York, New York 10007

Dear Chancellor Walcott,

I write in response to yow letter dated September 19,2013 conceming the appointmentof arbitrators for Education [¿w $ 3020-a hearings. The United Federation of Teachers("UFT") stands by the commitments made in the April 2010 agreement with the Boardof Education of the City School District of the City of Ncw Yorlc (the "DOE"). TheUnion has always wanted a swift, fair adjudication of $3020-a charges so that educatorswho should be in the classroom are returned to teaching and those who should not bewith students are promptly removed from the profession. We have also wanted theprocess to be efücient for the taxpayers of the City of New York. Unfortunately, itseems the DOE is singularly focused on the number of arbitrators to the exclusion of allelse, in an apparent effort to justifr the swelled number of lawyers on the central DOEbudget, even going so far as to cancel a mediation prooess that has been very effective,

While the process of selecting arbitrators would be expedited if the DOE would proposemore qualiflted candidates, just since August, the UFT has agreed to invite 14 arbitratorsto the Panel, in addition to the approximately 16 we invited last year. We continue towork with your staff to find mutually agreeable arbitrators and even exchanged proposedlists as recently as September 6th. In addition, several arbitrators have lefr the panel inrecent years because they were not promptly being paid by SED. Thanks in part to theUFT's advocaoy, the arbitrators are now being paid, so we expect to have an easier timegoing forward.

Most troubling is the DOE's decision to abandon a mediation process that has beenexceptionally effective at producing voluntary pre-trial settlements, thereby eliminatingthe need for more expensive hearings, In the limited time we have had mediation, 39 outof 55 cases (71,%) were resolved without the need for a¡r arbitrator or an arbitration. Ifthe DOE was truly interested in rcsolving cases efficiently, it would agree to ourproposal to keep this process in place permanently. Indeed, we have repeatedly asked the

52 Broadway, NewYork, NY 10004 pi212,777.7500 www.uft,org

Offlcer€: M16ñaal Mulgrêw P€s/darl, Emll Plstrþmoñaco Secretary, LeRoy garr.Asslsfanl Secrelary, Mel Aaronson TrcÈsurat, Mona Româln Asstslant TreasuÍelVlco Presldents: KarÊn Altord, csrmen Alvarêz, câtÉlinâ Forllno, Anne Goldman, Janella Hlnds, Sterllng Roberson



2

DOE to work with us to establish a meaningful pre-charge process for resolving cases,

but you have refilsed to do so. We also believe that DOE attomeys continue to not fullyutilize hearing days in violation of the 2010 agleement.

Moreover, you have mischaracterized the conversations between the UFT and DOE as

well as the 2010 agreement. The letter commits the Union and DOE to regularconversations about the "appropriateness of the number of farbitrators]" and during theseconversations we have expressed our view that, particularly with greater effrciency at theDOE, there would be no need for the number of arbihators the DOE believes neoessary,Nevertheless, we remain committed to ensuring there is no backlog and that oases

proceed along the timelines set forth in our agreements. lndeed, contrary to yourassertions, the misconduct panel is proceeding to hear cases charged right before thesummer break, The number of oases awaiting hearing on the competency panel is, inlarge part, still within the timelines provided by the agreement and attributable to theDOE's practice of charging large numbers of cases at the same time at the end of theyear.

In sum, the facts are very different than the claims made in yow letter. Instead ofultimatums and threats, it would be better for teachers, students, and taxpayers if we re-established the mediation program and returned to the business of promptly selectingarbitrators,

Sincerely,

2^uMichael MulgrewPresidentUnited Federation of Teachers

Department ofEduoatlonDennlc M, Walcolt, Chanaelloi

Courtenaye Jackeon-ChaseGeneral Counsel

September 23,2013

Jeffrey T. ZainoAmerican Arbitration AssociationVice Presidenl - Laþor, Employment and Elections Division120 Broadway, 21" FloorNew York, New York 10271

Dear Mr. Zaino,

The New York Ci$ Department of Edubatlon requests the American Arbihation Association's assistancein fllllng our panel of arbitrators that preside over hearings pursuant to Education Law 3020-a. lnaccordance with Article 21G2 of the collectlve bargainlng agreoment þetween the New York CltyDepartment of Education ("DOE) and Unlted Federation of Teachers ("UFT") (see attached), "when thoparties cannot agree to a full complement of panel members, additional impartial arbitrators shall bsselected by the partles ln accordance with the American Arbitration Association (AAA)' strike and rankprocess until the requlslte number of arbitrators are ernpanelled. After d.iscussions that have laeted anextended period of tlme the parties have been unable to agree on a full conìplement of arbitrators andrequire 20 more arbitratore at this timo to fill their Education Law 3020-a panel.

For your reference I have also attached the letter agreement between the parties dated April 15,2010 (see pp. 6-7) wherein the parties agreed to increase the size of the 3020-a panel.

We kindly request a conference call as soon as possible to initiate the selection process,

Thank you for assistance in this matter.

Slncerely,

/,(4 "eh"ar

Cc: Adam Ross, UFTDavid Brodsky, NYCDOE

Oflloe of the General Counsel . 52 Chambers Street o Room 320 ¡ New York, NY 10007Telephono: 212-374-3440 Fax 212-374-5596

&r",/*'gø/"'øGourtenaye Jackson-ChaseGeneralCounsel



G. Educatlon Law $3020-a ProceduresTenured teaohers facing disoiplinary oharges filed, or in thc case of Seotion I "Time

and Attendanoo", discþline pursuant to that Section, wilf be subjeot to Section 3020-a ofthe Education Law as modifisd by paragraphs 1-10 below.

l, lime and AttendanceIf the Board .seeks to discipline a tenured pedagpgue regarding absences *d/9i

lateness but scsks a penalty shori of ærmination, the following expedited procedure will

' apply:' ' iþ. Board will notify the employeo that it intends to bring disciplinary action against

the employee pursuant to this -seotion.

The Board will inolude in this notice the

employL'é attendanoe record and any other documentation it intends to introduce at the

hearing and a statoment that pursuant to this section tho arbiffator may award any ponaþ,

or take other action, short of termination.V/ithin 15 calondar days following this notice, the employee must notiry the Board in

writing of the nature of hiBVrer defeñss and submit any documentation s\hc intends to

submil into evidenoe as woll as a medical rolease for any medical doouments related to

such defenseIf either party believos that it roquires additional doouments, it may request a

telephonic oonference with the arbitrator,Tho oxpedited hearing will oocur within one month of the Board's notifîcation to the-

hearing wìll be informal and the normal rules of trial

apply, The arbitrf the hearing. The

binding on all parties' The award may be introduoed i

hearing and any findings shall be binding on

On-o arbitrãtor, agrãed upon between th abssnce and lateness

oases hereunder, .tlie

parties may expand I is if neoessary. The

arbttrator wilt hear 4 cases per hearing datê on I staggored sohedule, but in no situation

will one case take more than % a day, -The

parties may expand the number of cases hoard

in a day if they dccm it Praotical.2. Rotational PanelAs disoussed and. agrecd uPon, all

implemontation of a permanont arbitratí

to both sides, however, if the parties

membeß, additional irnpartial arbitrators s

with the Amerioan Arbitration Association

from lis(s) provided by the A\rav{ until the

sucrl permaneffi panel,Panel members shall serve for a maximum of a onc'year term. At the expiration

such term, tho parties must agree to havo arbitrators oontinue to serve on the panol, and ifnot, replaoement membsrs will be elected by the method outlinsd above. Removal prior

to.thc ond of the one-year term must be for good and sufficient cause upon mutual

agreement of the parties,

terms:

n3

to serve on the rotational must agree to tho following

TFm Npw Yonx Crrv Dnpenm¿ni.rr or EoucerroruIOEL I, KLEIN, Cfiancelbr

Orp¡cn orrHn CHANcBLLoRS2CHAMEERS STRBBT. NEW YOßK. NY IOOOT

April 15,2010

Michael Mulgrew, PresídentUnited Federation of Teachers52 Broadway, l4rh FloorNew York, New York 10004

Dear Mr, Mulgrew:

This letter will oonfïrm the mutual understandings and agreements between the Board ofEducation of the City School District of the City of New York ("DOE") and the UnitedFederation of Teachers ("UFT'). Nothing in this Agreement shall constitute a waiver ormodification of any provision of any collective bargaining agroement, letter (including but notlímited to the June 27,2008letter from the Chancçllor to the President of the UFT) or otheragreement between thc DOE and the UFT except as speoifically set forth herein, Nothing in thisagreement shall be construod to oonvert non-mandatory subjeots of bargaining into mandatorysubjects of bargaining. As used herein, the term "CBA" shall refer to the colleotive bargainingagreement covering teachers and corresponding provisions of othel UFT-DOE colleotivebargaining agreements.

The long delays that have arisen in the current process ofinvestigating alleged aots ofmisconduct and adjudioating charges pursuant to Education Law g 3020-a benofit neither theDOE nor the employees represented by the UFT, Tho DOE and the UFT are committed topnsuring that the agreements reached here will be cartied out so that those delays will be endedand ths procoss outlined in the law, tho contracts between the parties, and this Agreernent will beadhered to.

For purposes of this Agroement, all timelines shall be measured in oalendar days, but shallnotinclude the summer break, all reoess periods and holidays.

Reøsstgnment

rr. -.::L' ::i!:¡ -r' '""' Mlsatilidt¡öt Cases (l:e:,'any öasu déëfitéd by theDÖË tö dëal'êxölüsively orþriinariiywith an employee's behavior, not his or her pedagogy): Ponding investigation of possiblemisconduct and completion of the $ 3020-a hearing, the DOE may reassign an employee only to(i) a DOE administrative offics to do work o'onsistent with law (an "Adminishative OfficeAssignmont") or (ii) an administrative assignment within his or her sohool with a programconsisting of Professìonal or Adminishative Activities (as listed in CBA Articles 7(,\)(6)(a),(Ð(tXa)fGx4xg)fl), orl(-K)(j)(d))other than-items #t-(smallgroupinstructionf#2{one-to-

one tutoring), #3 (advise student aotivities such as clubs, teams or publioations) and #7 (conflictrosolution for students), whioh shall be saheduled consistent with CBA Article 7(B)(2)(c)regardless ofthe division in which the employee works ('Administrative School Assignment").

t

Where tho Chancellor or his designee determines that it is in the best interests of the schoolsystem that an employee accused of sexual misconduct as defined in CBA Article 21(G)(6) orsorious financial misoonduot involving more than $1,000 not be allowed to work in anAdministrative Offrco Assignrnent or an Administrative School Assignment pending theoutcome of the investigation, the DOE may suspend the employee with pay rather than reassignhim/hor, The determination of the Chanoellor or his designee to suspend an employee with pay

shall be in writing. Prior fo a suspension from all duties with pay, the Chancellor ot his designeeshall consult with the UFT President or his designee.

The DOE shall prefer ohmges pursuant io Education Law $ 3020-al within 60 days of an

employee being reassigned or suspended, except in cases where the reassignment or suspensionwas oaused by (i) an allegation of sexual misoonduct as defined in CBA Article 2I(G)(6) that isbeing investigated by the Spocial Commissioner of Investigation for the New York City SchoolDístriot ("SCI"), (ii) an allegation of serious financial misconduot involving more than $1,000that is being investigated by SCI, (iii) criminal charges pending against the employee, (iv) anallegation of serious assault that is being investigated by SCI, (v) an allegation of tampering witha witness or evidence, where the allegation of tampering is being investigated by SCI. In cases

where the 60 day period does not apply, when SCI issues a report or, in the oase of oriminaloharges, the employee notifies the DOE of the disposition of the criminal case pursuant toChanoellor's Regulation C-l05, the DOE shall have 15 days to bring $ 3020-a charges againstthe employee or return the employee to his or her prior assignment. Nothing hereín shall waiveany limitations period for the btinging of charges pursuant to Education Law $ 3020-a. TheChancellor or his designee and the President of the UFT or his designee shall meet monthly, orless frequently íf the UFT and DOE agree, to review the status of these cases. At the end of theftrst year of this Agreemont, and in subsequent yoars if requested by the UFT, the DOE and theUFT will meet to review the issue of investigations and reassignments extending beyond 60 daysand, if there has been a significant increase in tho number of suoh investigations androassignments, to negotiate ways to addrsss this issue.

Except in those cases where the DOE is not required to prefer charges within 60 days,should the DOE not prefer $ 3020-a charges within 60 days, the employee shall be roturned tohis/her prior assignment. If an employee is returned to his/hei prior assignment, adverse actionshall not be taken against the employee solely because of the reassignment. If $ 3020-a ohargesare preferred subsequent to the expiration of the 60 day period, the employee may then again bereassigned to an Administrative Offrco Assignment or an Administrative School Assignment or,where the Chancellor or his designee determines that it is in the best interests of the schoolsystem that an employee accused of sexual misconduct as defined in CBA Article 21(G)(6) orsorious finanoial misoonduct involving more than $1,000 not be allowed to work in anAdministrative Office Assignment or an Administrative School Assignment pending the

- *-tiütöo-iútë of thd'inve¡tigation; $uspênd'the emþlöyee with'päy rather thân reassigä'him/her

pending determination of the $ 3020-a charges. The determination of the Chancellor or hisdesignee to suspend an employee with pay shall be in witing, Prior to a suspension from allduties with pay, the Chancellor or his designee shall consult with the UFT President or his

' Probatlonarv emBloyeegwlll¡eæasslgned ln the same manner as tenured employees-under-thlgÁgreement le,to an Adrnlnlstratlve Offlce Asslgnment, Admlnlstrative School Asslgnment, or suspenslon wlth pay (lf permltted bythls Agreement). This Agreement shall not be construed to create tenure or Educatlon Law $ 3020-a rlghts for an

emPtoYee,

2

'designee, An employee's assignment pending investigation and/or a hearing shall not be raisedat the hearing or deemed relevant in any way to the determination of the charges, any penaltyissued or the adjudioation ofany issue ín the hearing.

Incompetence Cases (i.e., any case deemed by the DOE ¡o deal exclusively or ptimarilywith an omployee's pedagogy) - Pending the bringing of Eduoation Law $ 3020-a oharges foralleged incompetence and completion of the $ 3020-a hearing, tho DOE may reassign an

employee only to an (i) Administrative Offioe Assignment or (ii) an Administrative SohoolAssignment, The DOE shall prefer oharges pursuant to Eduoation Law $ 3020-a within 10 daysof an empleyee being reassigned. Should the DOE not prefer $ 3020-a charges within 10 days,the employee shall be tetumed to his/her prior assignmont. If an employeo is returned to his/herprior assignment, adverse action shall not be taken against the employee solely beoauso of thsroassignment. If $ 3020-a charges are prefened subsequent to the expiration of the 10 dayperiod, the employee may then again be reassigned to an Administrativo Office Assignment oran Administrativo School Assignment ponding dotermination of the $ 3020-a chargos.

Tolling: If the DOE gives a roassigned employee 48 hours notice of an interview whichmay lead to disciplinary action and the reassignod omployee either fails to appear on thescheduled day or fails to notiff the DOE that s/he is invoking any right he/she may have to notanswer questions, the DOE shall reschedule the interview within a reasonable period of time andthe time betweon the originally scheduled interview and the lescheduled interview shall notcount üowards the applicable 60-day or lO-day límíts on the lengfh of time an employee may bereassigned or suspended with pay. 'Where

a principal sohedules an interview which may lead todisciplinary action of an employee that has been given an Administrative School Assignment and48 hours notice is not required by the CBA, Chanoellor's regulations, or law, the following shallapply; If the reassigned employec eithe¡ fails to appear on the scheduled day or fails to notifytho principal that s/he is invoking any right he/she may have to not answor quostions, theprincipal shall roschedule the interview within a reasonable period of time and the time betweenthe first sçheduled interview and the rsscheduled interyiew shall not count towards the applicable60-day or 10-day limits on the length of time an employee may be reassigned. Nothing hereinshall constítute a waiver or alteration of any right the DOE may have to compel an employee toattend an interview whiohmay lead to disciplinary action or any right an employeo may have tonot answsr questions.

Semlce of Charges

In order to m¿ke the process as efficient as possible, service of notice of the nature of the charges--and,tho,aotual ohargas shâll be oonsolidaûed and sorved iogother.upon an omþloyeo'along,with .

. speoifioations and, in incompetence cases, a bill of particulars, Nothing ín this Agreemont shallalter a Respondent's entitlement, if any, to a bill of particulars in misconduct cases.

Prc bable Cause Delermlnøllons

In addition to the enumerated acts set forth in CBA Article 2l(GX5), sgrious misconduct shallalso inolude actions that would constitute a class A-I or A-II folony or any folony defined as aviolent felony offense in NY Penal Law $ 70.02. An indictment on a class A-I or A-II felony, anindictrnent on any felony defìned as a violent felony offense in NY Penal Law S 70.02, ot afelony indictmEnt on any other conduct that constitutes serious misconduot pursuant to CBAArtiole 21(GX5) shall create a rebuttable presumption of probable cause,

If a finding of probable cause was based on an indiotment pursuant to CBA Articto 21(G)(5), theemployee shall remain off payroll pending the disposition of the criminal case. The DOE shallhave 15 days after the employeo notifies the DOE of the disposition of the criminal case pursuantto Chancollor's Regulation C-105 to bring Education Law $ 3}2}-aoharges based on the sameconduct as \ilas at issue in the criminal case. If the DOE prefers $ 3020-a charges on the sameconduct a$ was at issue in the oriminal case within tho 15 days, and the employee was conviotedin the criminal case of any offense that constitutes sorious misconduct, helshe shall remain offpayroll until a deoision in the $ 3020-a oase and such g 3020-tcase shall be oompleted within thetimeframes for hearings set forth in this Agreement, If the DOE prefers $ 3020-a oharges on thesame çonduot as was at issue inthe criminal case within the 15 days, and the employeo wasacquitted of all offenses that constitute serious misconduct, the DOE shall reassign the employeeto an Administrative Office Assignment or an Administrative School Assignment, suspond theemployee with pay (if permitted pursuant to this Agreement) or request a second probable causehearing to continue the suspension without pay until the final outcome of the g 3020-a hearingand such $ 3020-a case shall be oompleted within the timeftames for hearÌngs set forth in thisAgreement. Ifthe DOE does not bring Eduoation Law $ 3020-a chargos within thosd 15 days,the employee shall be restored to the payroll effective as of the date the disposition of theoriminal case and returned to his/her prior position.

If a finding of probable cause was based on criminal oharges pursuant to CBA Article 21(GX6),the DOE shall have 15 days after the employee notifies the DOE of the disposition of theoriminal charge pursuant to Chanoellor's Regulation C-105 to bring Education Law $ 3020-acharges based on the same conduct as was at issue in the oriminal charge. If the DOE bringssuch a $ 3020-a charge, the employee shall remain off payroll until a decision in tho g 3020-acass and such $ 3020-a oase shall bo comploted within the timeframes for hearings sot forth inthis Agreement. If the DOE does not bring $ 3020-a charges based on the same conduct as was

t liifiiffit

oharge within tt*ll;åiff :ii,t:*e

notiffing tho,DoE of the

tö¡oöto tfië as óf rhê'ðàre the é"öi

Nothing in this.Agreement shall alter the provisions of CBA Artiole 21(cX5) and (6) withrespect to entitlement to back pey. The DOE agrees to meet on a bimonthly basis with the UFTto assess the status of investigations extending beyond 60 days where the employeo has beensuspended without pay, Tlmcframetor Heørings

Within 10 - 15 days of DOE's receipt of the request for a hearing from an employee chargedunder Education Law $ 3020-a, a pre-hearing conference shall be held. Both Education Law

4

$ 3020-a and the collective bargaining agreements require hearings, including closingstatements, to bo completed within sixty (60) days of the pro-hearing oonfèrenoe and a deoisionto be rendered within thirfy (30) days of the final hearing date, The UFT and DOE agree thistimeflame must be adhered to by all parties to the hearingS and strictly enforced by hearingoffïcers. Hearing officers shall establish atrial schedule at the pre-hearing oonferenoe to ensurethat hearings are completed within the required statutory and oontraotual timeframes and onsurean equitable distribution of days between the DOE and the charged employee.Eduoation Law $ 3}2}-apermits "limited extensions" beyond the 60 days where it is determinedthat "extraordinæy sircumstanoes" warrant, "Extraotdinary ciroumstances" shall bE construednanowly by hoaring officers so that tho granting of "lirnited extensions" allowing hearings to lastbeyond sixty (60) days is the exception and not the rule. Pursuant to CBA Artiole 21, aheaúngofftcer may be removed prior to the end of his or her one-year term only for good and suffioientcause, whích may include failure to comply with this Agreement, upon mutual agreement of theUFTandDOE,

If ths hearing officer dotermines that a necessæy witness is a former student who is unavailablebeçause he/she is resíding outside ofNew York City ora cuffent student who is unavailablebeoause he/she has left New York City for an extended period of time, this shall constitute an"exhaordinary oirçumstanoe." In such a case, the hearing officer shall schedule the heæing tobegin or continue as soon as possible given the availability of the witness as demonstrated to thehoaring offrcer.

Arbitrators sorving on the oompetence panel must agree to provide seven (7) consecutive hearingdatas as defïned in CBA Article 2l(G)Q)@) per month for the months of September throughJuns and two (2) hoaring dates for the months of July and August,

Dlscovery ønd Testlmony

In order to comply with timelines for hoarings, the UFT and DOE agree that hearings must beheld in as efficient a mannor as possible. Disputes relatíng to documsnt production, witness listsand other procedural issues often consume hearing time and should be dealt with to themaximum oxtent possible in the pre-hearing conferenqe, To that end, the UFT and DOE havealready agreed in the June 27 ,2008 letter fi'om the Chancellor to President of the UFT to certaindiscovery prooedures.

The hearing process itself oan be conducted in a more effrcient manner that allows for issues tobe fully and fairly litigated. To accomplish this, the parties to the hearings shall adhere to the

" "' -fttlltrïvlng girldél lnes : "

1. It is the intent of the UFT and DOE that, to the exùent praotioable, hearing days shallbe fully utilized, that hearing days not end before 5pm and the partios to the hoaringhave multþle witnesses ready to testify to avoid the loss of part of the day,

2, Where a hearing day is not fully used, the unused time will be counted towards theallocated

3. Attorneys shall not meot with others between direct and cross examination for longer¡han20 minutes, except in unusual circumstances,

5

4, Hoaring Officers shall ensure that qoss-oxamination is not used by either party as adilatory taotio in order to reduce one of the parties' allotted time to present its case.

5. Bvidence shall be limited to relevant matters.6, Rebuttal shall be used only to deny some affirmative fact that the opposing party has

tried to provo, Dwing rebuttal, a party to tho hearingmsy not offer proof tocorroborate ovidenoe that has alroady beon presented by that party or prooftendingmerely to support that party's caso aftor the opposing party has rested,

If relevant and requested at the pre-hearing confetence, either party may introduoe (i) relevantbackground evidenco about a witness by affidavit from the witness; (ii) an affidavit from adoctor's offrce attesting to an employee's visit or non-visit on a particular date; (iii) an affïdavitattesting to tho date of an employee's anest, the charge (if any) against the anested employee,and tho disposition of that charge; Such a witnsss may be cross,oxamined regarding any matterdiscussed in an affidavit,

lf relevant, a (i) business record, (ii) attendance list from a facuþ meeting, orientation and/ortraining session, or (üí) any human resor¡rce document submitted by a respondent (e,g, absenceor sick note) may be admitted with an affrdavit from a custodian of tho record, without tho needfor live testimony from a wiûress to authenticate ths document,

A paty to the hearing or the hearing offïcer may request an unedited copy of the relevanttransoript if a certified transoript is not available when needed. The unavailability of a certifiedtranscrþt shall not exouse adherence to the time limitations for completion of a hearing andissuance of a dooision.

Non-Termìnation Cases

The oxpedited hearing process as described in CBA Article 21(GX3) shall be utilized as set forththerein, with the following modification: If the DOE deoides not to seek a penalty of more thana suspension of4 weeks or an equivalent finc, the case shall be heard under the expeditedþrocedures provided in CBA Article 2l(GX3), without tho need for the employee to accept anoffer of expedited arbitration.

A separato traok of "non-termination" oases will be est¿blished with a separate panel ofadditional hearing officers that exclusively hears expedited cases.

: =!!-': :n.::" "!-g'ry:'! 9rí9'!n"s oflP:ls ' ' '

The number of heæing offïcers shall bç as follows:

Incompetence Cases shall be heard by a panel of 14 hearing officors.

Misconduct Cases shall be heard by a panel of 25 hearing officers,

Expedited Casos shall be heard by a panol of hearing officers, the size of which will beset by the UFT and DOE as described below,

6

Representatives of the UFT and DOE shall meet monthl¡ or less frequently if the UFT and DOEagtee, for the first year of this Agreement and at least twice a year thereafter (i) to agreo on thenumber of hearing officers hearing expedited cases, (it) to disouss the appropriateness of thenumber of hearing offïcerS, including the possibility of agreeing to increase or decrease thenumber of hearing officers on either the incompetence or misconduot panels on either atemporary or permanont basis, and (iii) to disouss the appropriateness of the number of probablecause arbitrators, including the possibility of agreeing to increase or deorease the number ofprobable oause arbitators. If the DOE believes thore i's a need for more hearing officers tooomply with the timelines set forth in this Agreenient, it shall request that the UFT agree toincroase the numbor of hearing officers and the UFT shall not urueasonably deny an inorease.

Dectslotts

Bpth Bducation Law $ 3020-a and the collective balgaining agreements require decisions within30 days of the oornpletion of the hearing.

Meellng wlth the Pønel of Heørlng Olficers

The Chancellor and tho President of the UFT will personally, jointly meet with the panel ofhearing offltcors annually to impress upon the hearing offlrcers that both parties to this Agreementare serious about meeting the timelines in the law, the collective bargaining agreements, and thisAgreernent. Tho Charcellor and the Presídent will urge the hearing offrcers to striotly control thehearings and require all parties to tho hearing to conform to the timelinos provided horeÍn. Theywill assure the hearing offïcers that no hearing officer will be romoved by eithor party to thisAgreement for enforcing these rulos.

Medløtlon otEtlucatlon Law $ 3020-a chøges

This seotion, "Mediation of Eduoation Law $ 3020-a oh&rges," shall apply to all employees withpending Education Law $ 3D2}-acharges on or before September 1, 2010 or being investigatedon or beforo Soptember 1,2010 and the investigation results in $ 3020-a oharges. The parties totho $ 3020-ahearings shall begin mediating suoh cases upon the signing of this Agroement.

The UFT and DOE shall agree on hearing offioers on the rotational panel that shall ssrve asmediators one day per month (in addition to their required hearing days that montþ. The UFT

. _flÍ DgEtryI1t:.9io.iytv,ryt9crl9diato1¡ nof ounently Ttr,ln l of|egi1e,olfi:o:, ,

Each caso subjoot to mediation shall be assignod, on a rotational basis, to a mediator, other thanthe hearing offrcer assigned to decide the case.

The employoe (and the employee's ropresentative, if any) and a representative of the DOE withauthority to negotiate settloment agreements (subject to final supervisory approval) shall meetwith the-mediatorfho mediator shall-work informalþ to-assist-the charged-employeeDOE in reaching, if possible, a volunúary, negotiated resolution of the Education Law $ 3020-acharges, The mediator shall not deoide the merits of the Education Law g 3020-a oharges or

7

impose a deoision. Insüead, the mediator shall help the charged employee and the DOE to, ifpossíble, agree on a mutuaþ acceptablo resolution,

No mediator shall be compelled to or voluntarily disclose (including in any subsequentprocdedings under 93020-a of the Eduoation Law) any informatíon learned during the mediation.

BacklogEffective the first day of the 2010-2011 sohool year, all employees who, prior to August 3 1,

2010, have been (i) removed from their positions and assigned to a tomporary roassignrnentcenter or (ii) charged pursuantto Educa¡ion Law $ 3020-a shall be reassigned to anAdministrative Office Assignment or an Adminisftativc Sohool Assignment or suspended withpay (if permitted by this Agreemont).

For all employees oharged prior to August 3t,2070, the requirement that the pre-heæingconference be scheduled within 10-15 days of tho charge shall not apply, but the $ 3020-ahearing and deoision shall be compleüed by Decernber 31, 2010.

For all employees who were assigned to a TRC prior to Aûgust 31, 2010 and were not chargedprior to August 31, 2010, the 10 or 60 day period to charge an employee or rctum himlher tohis/her prior assignment, shall run from Soptembor l, 2010.Bffective September l,20l0,the parties will implement the new timelines set forth in thisAgreement, which shall apply to all cases charged after September 1, 2010,

Sincerely

Joel I. KleinChancellorNew York of Education

and Aooopted By:

Michael MulgrewPrBsidentUnited Federation of Teaohers

¡NUeUFT

Unlì6d Federation ol Teachêrs

By E-MaÍl and Overnight Mail

Adam S. RossDirect Dial: 212-7 01 -9 420

[email protected]

September 24,2013

Jeffrey T. ZainoAmerioan Arbitratíon AssociationVice President - Labor, Employment and Elections Division120 Broadway, 21't FloorNew Yorlc, New York 10271,

Dear Mr, Zaino,

I write in response to DOB General Counsel Courtenaye Jackson-Chase's letter to you datedSeptember 23,2013 requesting the assistance of the American Arbitration Association (AAA) inselecting hearing officers for the rotational panel hearing Eduoation Law $3020-a cases (Panel),At this time, the United Federation of Teachers (UFT) respectfully zubmits that there is no needfor AAA involvement in the selection process and that Ms. Jackson-Chase's request is inviolation of the applicable collective bargaining agreements.

Ms. Jackson-Chase's letter cites Article 2l(G)(2) of the collective bargaining agreement betweenthe Board of Education of the City School District of the City of New York (dlbla "theDepartment of Eduoation" or "DOE") and the IIFT covering teachers. That provision (andconesponding provisions in other UFT-DOE collective bargaining agreements coveringpedagogues) states:

[P]anel members must be agreeable to both sides, howevet, if theparties cannot agree to a full complement of 20 panel members,additional impartial arbiüations shall be selected by the parties inaccordance with the American Arbitration Association (AAA)procedures (strike and rank method) from list(s) provided by theAAA until the desired number (20) is reached....

UFT-DOE CBA covering Teachers, Article 21(c)(2)(emphasis added).r

tNotably, to the extent the DOE believes the provisions of Afiicle 21(G)(2) authorize the AAA to be involved in theselection of any additional hearing officers provided for in the letter agreement April 15, 2010, the UFT need notaddress that issuo at this time, for the reasons stated below.

52 Broadway, NewYork, NY 10004 p:212.777.7500 www,uft,org

Ofllcero: Michael Mulgrew Prssidenl, Emll Pl€tromonaco sacrclaty, LeRoy Ban Ass/slant Sewelary,Mël Aâronson lfeoau¡el Mona Româin .qssislanl TrcasurètVlæ Presldents: Karon Alford, Carmen Alvar€z, Catallna Forllno, Anne Ooldman, Janella Hlnds, Slerllng Roþerson



The UFT's attorneys work with the UFT's Grievance Department and the Offrce of the GeneralCounsel of the New York State United Teachers OIYSUT) to propose highly qualifiedarbihators to the DOE that we believe will be "agreeable to both sides". Likewíse, the DOEproposes arbitrators to the UFT that the UFT evaluates in conjunction with NYSUT. Thisprocess has filled, and continues to fill, vacancies on the Panel,

At this time, the partieq have not reached the point where we cannot agree on potential Panelmembers. Just since August, the UFT and DOE have agreed to invite 14 arbitrators to the Panel,in addition to the approximately 16 we invited last year. As recently as September 6th the partiesexchanged proposed lists of arbitrators consisting of twenty names of arbitrators and there is noreason to believe that additional mutually agreeable arbitrators cannot be selected from those,and/or subsequent, lists.

Accordingly, on behalf of the UFT and our colleagues in NYSUT, I respectfully request that theAAA refrain from becoming involved in the contractual selectíon process unless and until suchtime as it becomes appropriate in accordanae with the terms of the applicable collectivebargaining agreements.

Adam S. RossGeneral CounselUnited Federation of Teachers

aç: Courtenaye Jackson-Chase, Esq,, NYCDOEDavid Brodsky, Esq., NYCDOECarol Gerstl, Esq., UFTClaude Hersh, Esq., NYSUTEllen Gallin-Procida, Director of Grievance Department, UFT

Departmsnt ofEducatlonDonrils M, Walcott, Chancsllor

Courtonayo Jackson.GhaseGeneral counsel

September 25,2013

Jeffrey T. ZainoArnarican Arbitration Associatlo n

Vice President - Labor, Employmont and Elsctions Division120 Broadway, 21st FloorNew York, New York 10271

Dear Mr, Zaino,

I write in response to the letter from UFT General Counsel Adam Ross dated September 24,2013, which asserts that the DOE and the UFT and NYSUT have þeen successful in prior etforts to selectarbitrators fot the panels seated to hear disciplinary cases pursuant to Education Law 3020-a during the2011-2012 and 2012-2013 school years and that the American Arbitration Association's involvement isnot necessary at this time, The last time that the UFT and DOE were able to mutually agree and select apanel of arbitrators was during the 2010-2011 school year. Pursuant to the April 15, 2010 agroement,both the DOE and the UFT seleoted and empaneled the full complement of 39 arbitrators during thatschool year, We have, however, þeen unable to agree on the selection of 39 panel members in

' subsequent school years 201'l-2012 and 2012-2013. The inability to jointly select a full panel hascontributed to the current backlog of well over 400 cases, with ernployees waiting many months beforetheir disciplinary cases can be heard, well over the 60 days mandated by the Educatlon Law and theApril 15, 2010 agreement.

Whilo it ls true that during lhe 2012-2013 school year, the DOE and UFT invited 14 arþitrators tothe panel, it is imperative to note that only 5 arbitrators accepted the invitation. This year,a totalof 14were invited and thus far only 7 have accepted. This month, the DOE and UFT proposed arbitrators, butnone have been lnvited as the UFT has not agreed as to when they will be ready to move forward wlththe selection process, At the current ratê of proposal and selection we will be wellwithin the next schoolyear before a panel is seated, This is unacceptable, as, in addition to the large backlog of cases, theDOE already has more than 150 cases to move forward through the 3020-a process this year and it isonly September.

It is clear that the parlies have not been able to reach agreement in seatlng the full cornplementof arþitrators for the 3020-a panel for the past two school years and there is no leason to expect that thisyear will be any different, We must act swiftly to seat a fullpanel to comply with the lette¡ and spl¡!!of lhe

procedures for arbltrator selection for Educ,ation Law 3020-a hearings with the UFT, commence the strikeand rank process untll the 39 arbitrators are sèlected for the panel,

Courtenaye J haseGeneral

Gc: Adam Ross, UFTDavid Brodsky, NYCDOE

ffice of tho Genoral Counsel o õ2 Chambors Street . Room 320 ¡ New York, NY 10007Telephone: 212-374-3/,40 Faxi212-374-559Ê




:3î]:::T'_Y:?.T ...........xBoard of Education of the City School District of the Cityof New York,

P I aintiff-Petiti oner,-against-

United Federation of Teachers,Defendant-Respondent.

STATE OF NEW YORK ): SS,:

coLrNTY OF NEW YORK )

Jason Dyer, being duly sworn deposes and says that:

l. The deponent is not a party to the action and is l8 years of age or older.

2. On September 27tn, 2013 the deponent served the annexed Summons &

Complaint upon the following person or persons:

Adam S. Ross, United Federation of Teachers, Attorney for the Defendant52 Broadway, New York, NY 10004

The number of copies served on each of said persons was 1.

The method of service on each of said persons was:

Pursuant to CPLR 2103(bX3), where the person served is an attorney, where a

person is in charge of the office, by leaving the s) with such

Jason Dyer

AFF'IDAVIT OF SERVICE

Index No.: 45173412013

aJ

4

Sworn to before me this27rh day of September,2073.

'-t

N C



of

PRESENT:HON

Justice of the Supreme Court

SUPREME COURT OF THE STATE OF NEW YORKCOLINTY OF NEW YOR

BOARD OF EDUCATION OF TI]E CITY SCHOOLDISTRICT OF THE CITY OF NEW YORK,

At IAS Part _ of the Supreme Court of theState of New York, held in and for NewYork County at the Courthouse located at 60Centre Street, in the Borough of Manhattan,City and State of New York on the _ day

2013

INDEX NO. 451734t2013

plaintiff, Date Filed

ORDER TO SHOW CAUSE

Defendant.

-against-

I-INITED FEDERATION OF TEACHERS,

Upon the annexed affirmation of MAXWELL D. LEIGHTON, dated September

30, 2013, in support of plaintiffs motion for a preliminary injunction; the afhrmation of

Naeemah Lamont, dated September 27,2013, in support of plaintiffs motion for a preliminary

injunction; the affirmation of Laura Brantley, dated September 27,2013, in support of plaintiff s

motion for a preliminary injunction; the Summons and Complaint, and the exhibits annexed

thereto; it is hereby

ORDERED, that defendant shall show cause before this Court, at an LA.S. Part

thereof, located in Room _, at the New York County Courthouse, 60 Centre Street,

New York, New York, on the _ duy of October,2013, at o'clock in the fore/aftemoon

of that day, or as soon thereafter as counsel may be heard, why an order should not be made and

entered herein:

A. Enjoining the defendant from refusing to participate in, or otherwise delaying,

the arbitrator selection process, and directing defendant to participate in good

faith, and pursuant to Article 2l(GX2) of the parties' collective bargaining

agreement, in selecting additional impartial arbitrators in accordance with the

American Arbitration Association (AAA) procedures (strike and rank

method) from list(s) provided by the AAA until 39 arbitrators are selected to

establish the parties' permanent panel; and

B, Granting such other and further relief which the Court deems just and proper;

and IT IS FURTHER

ORDERED, that sufficient reason appearing therefore, let service of a copy of

this order to show cause, together with a copy of the papers on which it is based, on defendant, or

any of its officers, or attorneys for defendant by personal service as provided in the New York

Civil Practice Law and Rules on or before the day of October, 2013, be deemed

good and sufhcient service on defendant; and it is further

ORDERED, that papers in response to the relief requested herein, if any, shall be

served by electronic mail upon the Corporation Counsel of the City of New York (attention:

Maxwell Leighton [[email protected]]), and all other parties or their attorneys to this

action, on or before October _, 2013, and that reply papers, if any, shall be served upon

parties who have appeared in this action on or before October _,2013.

ENTER:

2

J.S,C.

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YOR

BOARD OF EDUCATION OF THE CITY SCHOOLDISTRICT OF THE CITY OF NEW YORK,

Plaintiff,

-against-

UNITED FEDERATION OF TEACHERS,

Index No, 451734113

AFFIRMATION OFMAXWELL D. LEIGHTON INSUPPORT OF PLAINTIFF'SAPPLICATION FOR APRELIMINARY INJUNCTION

Defendant.

MAXWELL D. LEIGHTON, an attorney duly admitted to practice before the

courts of the State of New York, hereby aff,rrms, under penalty of perjury and pursuant to Rule

2106 of New York Civil Practice Law and Rules ("CPLR"), that the following is true and

correct:

1. I am an Assistant Corporation Counsel in the offlrce of Michael A.

Cardozo, Corporation Counsel of the City of New York, attorney for plaintiff Board of

Education of the City School District of the City of New York ("DOE") in the above-captioned

proceeding, This affirmation is based on the books and records of the DOE and on conversations

with employees of BOE,

2. I submit this affirmation in support of plaintifls application for a

preliminary injunction, seeking an order from the Court that directs the defendant United

Federation of Teachers ("UFT") to participate in good faith, and pursuant to Article 21(G)(2) of

the parties' collective bargaining agreement, in selecting additional impartial arbitrators in

accordance with the American Arbitration Association ("AAA") procedures until 39 arbitrators

are selected to establish the parties' permanent panel.



A. Background

3. The DOE and the UFT are parties to a letter agreement, dated April 15,

2010 (the "April Letter Agreement"). A copy of the April Letter Agreement is annexed to the

Complaint as Exhibit ("Ex.") "1."

4. The April Letter Agreement sets forth, and otherwise memorializes,

various accords between the DOE and the UFT concerning the procedures for investigating

alleged acts of pedagogical personnel misconduct and adjudicating any resulting disciplinary

charges against personnel brought pursuant to Education Law $ 3020-a.

5. In reaching the April Letter Agreement, the DOE and the UFT sought to

expedite the process by which disciplinary charges are adjudicated, thereby averting lengthy

delays, reducing the large backlog of disciplinary cases, and ensuring compliance with the

procedures set forth in the parties' collective bargaining agreement ("CBA") and the

requirements mandated by Education Law Section 3020-a.

6. Under Education Law Section3020, the DOE and the UFT may modify

by agreement the procedures set forth in Education Law Section 3020-a and, "[w]here such

procedures are so modiflred . . compliance with such modifred procedures shall satisfy any

provision of this chapter that requires compliance with section 13020-a] of this article."

Education Law $ 3020($(a).

7. Indeed, and as authorized by Education Law Section 3020, Article 21(G)

of the parties' CBA expressly pertains to "Education Law $ 3020-a Procedures," and provides

that "[t]enured teachers facing disciplinary charges filed . . . will be subject to Section 3020-a of

the Education Law as modif,red by paragraphs 1-10 below,"

8, Under Article 2l(G) of the CBA, the DOE and UFT have established a

rotational panel of arbitrators, (referred to in the April Letter Agreement as "hearing officers").

2





9. Under the April Letter Agreement, the DOE and the UFT agreed that the

number of arbitrators on the rotational panel would be increased as follows

Incompetence Cases shall be heard by a panel of 14

hearing officers,

Misconduct Cases shall be heard by a panel of 25

hearing officers.

April Letter Agreement, Ex. "1," at6

10. The April Letter Agreement further provides that

Representatives of the UFT and DOE shall meet

monthly, or less frequently if the UFT and DOEagree, for the first year of this Agreement and at

least twice a year thereafter (i) to agree on thenumber of hearing offtcers hearing expedited cases,(ii) to discuss the appropriateness of the number ofhearing officers, including the possibility ofagreeing to increase or decrease the number ofhearing oftìcers on either the incompetence ormisconduct panels on either a temporary orpermanent basis, and (iii) to discuss theappropriateness of the number of probable cause

arbitrators, including the possibility of agreeing toincrease or decrease the number of probable cause

arbitrators. If the DOE believes there is a need formore hearing officers to comply with the timelinesset forth in this Agreement, it shall request that theUFT agree to increase the number of hearingofficers and the UFT shall not unreasonably deny an

lncrease.

J

April Letter Agreement, Ex, "7," at'/.

11. At no time since the 2010-2011 school year has there been a full panel of

39 arbitrators, despite repeated insistence from the DOE,

12. The DOE has repeatedly sought the UFT's compliance with the April

Letter Agreement, most recently by letter, dated September 79,2013, from Dennis M. Walcott,

Chancellor of DOE ("Chancellor Walcott"), to Michael Mulgrew, President of the UFT. See

September 19,2013, letter, which is annexed to the Complaint as Ex. "8."

13. Chancellor Walcott advised, inter alia, that "[t]o date, only l8 arbitrators

have been appointed to the 3020-a panels, far below what was agreed to by the parties[,]" and

further that the "delays caused by the UFT and [New York State United Teachers] for this

school year, as well as in prior years, undermine the intent of the April 2010 Letter Agreement,

and have caused a backlog to develop and continue to grow," September 19,2073,letter, Ex.

"2r" at 1'

14. The reduction and future prevention of this backlog, as well as compliance

with statutorily mandated timeframes, were express justifications for the DOE, and the UFT to

increase the arbitrator panel from 20 arbitrators, fixed under Article 2l(G) of the parties'CBA,

to 39 arbitrators, provided under the April Letter Agreement.

15, In his September 19,2013,letter, Chancellor Walcott also noted that the

UFT's "continued failure" to agree to a full complement of arbitrators had delayed "timely

adjudication of charges," resulting in untenable salary and benefit costs to the DOE. See

September 19,2013, letter,Ex."2," af L

16. In its letter response, dated September 20, 2073, the UFT evinced no

intent to comply with the terms of the April Letter Agreement, See September 20,2073,Ietter,

from Michael Mulgrew to Chancellor Walcott, which is annexed to the Complaint as Ex. "3."

4

17. Under Article 21(GX2) of the CBA, which, by its terms, expressly

modifies the disciplinary procedures set forth in Education Law Section3020-a, in the event that

the DOE and UFT cannot agree to a full complement of arbitrators on the arbitration panel,

"additional impartial arbitrators shall be selected by the parties in accordance with the American

Arbitration Association (AAA) procedures (strike and rank method) from list(s) provided by the

AAA until the desired number . . . is reached to establish such permanent panel."

18, As the parties plainly cannot agree to a full complement of arbitrators for

the rotational panel, the DOE requested, by letter, dated September 23,2013, that the AAA assist

the parties in filling the panel of arbitrators that preside over Education Law $ 3020-a hearings.

See September 23, 2073, letter, from Courtenaye Jackson-Chase, DOE General Counsel, to

Jeffrey T. Zaino, AAA, which is annexed to the Complaint as Ex, "4."

19. On September 24,2013, the UFT advised the AAA and the DOE that it

believed AAA involvement to be premature and, further suggested, in any event, that Article

2l(G)(2) of the CBA, which stipulates that involvement, does not apply to the April Letter

Agreement. See letter, dated September 24,2013, lrom Adam S. Ross, UFT General Counsel, to

Jeffrey T, Zaino, AAA, which is annexed to the Complaint as Ex. "5."

20, By subsequent letter, dated September 25,2013, to the AAA, the DOE

responded to the UFT's misleading assertions, and clarified -- and contextualized -- the past and

present status of arbitrator selection, A copy of this letter, dated September 25,2013, from

Courtenaye Jackson-Chase, DOE General Counsel, to Jeffrey'1. Zaino, AAA, is annexed to the

Complaint as Ex. "6."

21. Among other things, the DOE informed AAA as follows:

The last time that the UFT and DOE were able tomutually agree and select a panel of arbitrators was

5

during the 2010-2011 school year. Pursuant to theApril 15, 2010 agreement, both the DOE and theUFT selected and empaneled the full complementof 39 arbitrators during that school year. We have,however, been unable to agree on the selection of39 panel members in subsequent school years 2011-2012 and 2012-2013. The inability to jointly selecta full panel has contributed to the current backlog ofwell over 400 cases, with employees waiting manymonths before their disciplinary cases can be heard,well over the 60 days mandated by the EducationLaw and the April 15, 2010 agreement.

September 25,2013, letter, Ex. "6,"

22. The DOE further corrected the notable misperception caused by the UFT's

assertions to the AAA:

While it is true that during the 2012-2013 schoolyear, the DOE and UFT invited 14 arbitrators to thepanel, it is imperative to note that only 5 arbitratorsaccepted the invitation. This year, a total of 14

were invited and thus far only 7 have accepted.This month, the DOE and IIFT proposed arbitrators,but none have been invited as the UFT has notagreed as to when they will be ready to moveforward with the selection process. At the currentrate of proposal and selection we will be well withinthe next school year before a panel is seated . Thisis unacceptable, as, in addition to the large backlogof cases, the DOE already has more than 150 casesto move forward through the 3020-a process thisyear and it is only September.

September 25,2013, letter, Ex. "6."

23, Thus, the DOE reiterated its request to the AAA for assistance, under its

procedures, in filling the full arbitrator panel

It is clear that the parties have not been able toreach agreement in seating the full complement ofarbitrators for the 3020-a panel for the past twoschool years and there is no reason to expect thatthis year will be any different, We must act swiftlyto seat a full panel to comply with the letter and

6

spirit of the April 15th agreement, and we againrequest that the AAA, in accordance with theagreed-upon procedures for arbitrator selection forEducation Law 3020-a hearings with the UFT,commence the strike and rank process until the 39

arbitrators are selected for the panel.

September 25,2013, letter, Ex. "6,"

24. On September 26,2013, the AAA advised DOE that, because the UFT did

not consent to utilizing the AAA process to seat a full panel, the AAA would not proceed. See

Complaint,n"42."

B. Injunctive Relief Standard

25. To obtain the remedy of a preliminary injunction, under Article 63 of the

Civil Practice Law and Rules ("CPLR"), a plaintiff must satisfy each of the following

prerequisites: (a) a clear right to the relief sought (also articulated as a likelihood of success on

the merits); (b) that it will suffer irreparable injury if the injunctive relief is not granted, and (c)

that the balance of the equities tips in its favor. See Doe v. Axelrod, 73 N,Y.2d 748,750, (1988);

W.T. Grant v. Srogi, 52 N,Y.2d 496, (1981); Cohen v. State tof 37 A.D.2df)en' Soc Services

626 (2d Dep't 1971), aff d, 30 N,Y,2d 571 (1972).

C. Plaintiff Meets the Standard for Injunctive Relief

26. Plaintiff can show a likelihood of success on the merits, and thus its

application for a preliminary injunction should be granted.

27. The April Letter Agreement is a valid and enforceable contract, which

provides, unambiguously, that 39 arbitrators will be seated for the rotational panel presiding over

disciplinary cases held pursuant to Education Law Section 3020-a.

28. The LIFT has continually been in breach of the April Letter Agreement,

despite the best efforts of the DOE seeking compliance,

7

29. While the parties were able to select and empanel 39 arbitrators for the

2010-2011 school year, which immediately followed the April Letter Agreement, for the

subsequent two school years, 2011-2012 and 2012-2013, the parties were unable to jointly select

a full panel. See Complaint,'1T"39,"

30. This has resulted in a sizeable backlog, with approximately 400 cases to

move forward through the Section 3}2}-adisciplinary process. See Complaint, flfl "39," "43."

31, Now, a month into the 2013-2014 school year, the parties continue to be

unable to jointly select a full panel.

32. Moreover, the UFT has refused to participate in the AAA arbitrator

section process, a mechanism previously recognized and agreed to by the parties, which exists to

resolve the precise predicament that the DOE now faces.

33. The UFT has no basis, whatåever, for its claim that the mandate of the

April Letter Agreement -- a rotational panel comprised of 39 arbitrators -- is in reach, much less

that it has been satisfied.

34. To the contrary, as noted above, and as the DOE has clarified for the

AAA, in two school years following the 2010-2ü I school year, and now, for this school year,

the rotational panel has fallen far short of the 39 arbitrator mandate.

35. This number is not an aspirational goal, but a practical need, given the

case backlog, previously reduced as a result of the April Letter Agreement, but now, due to the

UFT's continual delay, altogether excessive and damaging to the interests of the DOE and, one

would presume, of the UFT.

36. In its September 24th letter, claiming that AAA involvement was

premature, the UFT implies, in a footnote, that the AAA procedure set forth in Article 2l(G)(2)

8

is not applicable to the April Letter Agreement. See letter, dated September 24, 2013, from

Adam S. Ross, UFT General Counsel, to Jeffrey T. Zaino, AAA, which is annexed to the

Complaint as Ex. "5,"

37. If the UFT seeks here to ripen that implication into argument, such a

contention should be discarded,

38. Education Law Section3020(4)(a) provides:

Notwithstanding any inconsistent provision of law,the procedures set forth in section [3020-a] of thisarticle and section 12590-j(7)l of this chapter maybe modif,red by agreements negotiated between thecity school district of the city of New York and anyemployee organization representing employees ortitles that are or were covered by any memorandumof agreement executed by such city school districtand the united federation of teachers on or afterJune tenth, two thousand two.

39. Education Law Section 3020-a(3) ("Hearings") outlines the process by

which an arbitrator (or "hearing ofhcer") will be selected -- involvin g, inter alia, the State

commissioner of education and the American Arbitration Association -- and provides that

[nlot later than ten days after the date thecommissioner mails to the employing board and theemployee the list of potential hearing officers andbiographies provided to the commissioner by theassociation, the employing board and theemployee, individually or through their agents orrepresentatives, shall by mutual agreement select ahearing officer from said list to conduct the hearingand shall notify the commissioner of their selection.

Education Law $ 3020-a(3)(bxii).

40. The statute further provides that

[i]f the employing board and the employee fail toagree on an arbitrator to serve as a hearing officerfrom said list and so notify the commissioner withinten days after receiving the list from the

9

commissioner, the commissioner shall request theassociation to appoint a hearing officer from saidlist.

Education Law $ 3020-a(3)(bxiii).

4l. Accordingly, the statutory process sets forth a mechanism to resolve a

dispute, between the employing board and the representative of the employee, as to the selection

of an arbitrator.

42, However, as authorized by Education Law Section 3020(a)(a), the DOE

and the UFT entered into an agreement that modifies the statutory process,

43. Article 21(G) of the parties'CBA expressly pertains to "Education Law $

3020-a Procedures," and provides that "[t]enured teachers facing disciplinary charges filed . . .

will be subject to Section 3020-aof the Education Law as modified by paragraphs 1-10 below."r

44. Under Article 2l(G)(2) of the CBA, the DOE and UFT have established a

rotational panel of arbitrators, (refened to in the April Letter Agreement as "hearing officers").





45, Further modifying the statutory process, Article 2l(G)(2) provides that in

the event that the DOE and IJFT cannot agree to a full complement of arbitrators on the

arbitration panel, "additional impartial arbitrators shall be selected by the parties in accordance

with the American Arbitration Association (AAA) procedures (strike and rank method) from

' A "opy

of this, and other relevant portions of the CBA, is attached to the letter, datedSeptember 23,2013, from Courtenaye Jackson-Chase, DOE's General Counsel, to Jeffrey T.Zaino, AAA, which is annexed to the Complaint as Exhibit "4,"

10-

list(s) provided by the AAA until the desired number . . . is reached to establish such permanent

panel."

46. While Article 2l(G)(2) set the rotational panel size at20 arbitrators, under

the April Letter Agreement, the DOE and the UFT agreed that the number of arbitrators on the

panel would be increased to 39 arbitrators. See April Letter Agreement, which is annexed as

Exhibit "l" to the Complaint, at 6.

47. Accordingly, as both agreements, Article 2l(G)(2) and the April Letter

Agreement, modify the statutory process by which arbitrators are selected -- including the

mechanism for resolving selection disputes -- the UFT car¡rot credibly contend that AAA

intervention is unavailable,

48. Indeed, the assertion that the AAA process does not apply, when it plainly

stands in the stead of the statutory process, and where the parties clearly are unable to agree to a

full arbitrator panel, ignores the statutory scheme and violates public policy. See Cohoes Cit),

Sch. Dist, v. Cohoes Teachers Ass'n, 40 N,Y.2d 774,778 (NLY, 1976) ("We have sought to

make it clear, however, that the general rule that any matter in controversy between a board of

education and its teachers may be the subject of collective bargaining is limited by plain and

clear, rather than express, prohibitions in the statute or decisional law as well as in some

instances by fpublic] policy, whether derived from, and whether explicit or implicit in statute or

decisional law, or in neither.") (citations and quotations omitted).

49. The processes set forth in Education Law Section 3020-a constitute a

statutory imperative that disciplinary hearings against pedagogical employees proceed fairly and

expeditiously. While Education Law Section 3020 permits the DOE and the UFT to modify

those processes, they cannot abrogate that imperative. "Specifically, where, as here, public

-11-

policy concerns are implicated, a school district will not be deemed to have waived its statutory

rights under the Education Law without an explicit agreement between the parties or compelling

evidence that the school district made a conscious decision to do so." Consedine v. Portsville

Cent. Sch. Dist l2 N.Y.3d 286,294 CN,Y. 2oo9)

50. Here, self-avowedly, Article 21(G) of the CBA modifies the disciplinary

process set forth in Education Law Section 3020-a. Specifically, for the purposes relevant here,

Article 21(G)(2) provides the arbitrator panel, to be agreed on by the DOE and UFT, and, for

disagreement, sets forth a alternative process involving the AAA.

51. The April Letter Agreement, referencing, inter alia, Article 2l(G), made

its purpose absolutely clear:

The long delays that have arisen in the currentprocess of investigating alleged acts of misconductand adjudicating charges pursuant to Education Law$ 3020-a benefit neither the DOE nor the employeesrepresented by the UFT, The DOE and the UFT arecommitted to ensuring that the agreements reachedhere will be carried out so that those delays will beended and the process outlined in the law, thecontracts between the parties, and this Agreementwill be adhered to.

April Letter Agreement, which is annexed to the Complaint as Exhibit "l,"

52. Thus, the UFT's refusal to participate in the alternative selection process,

outlined in Article 2l(G)(2) of the CBA, and previously practiced by the parties, constitutes not

only a breach of contract, but also a violation of procedural agreements functionally equivalent,

by virtue of Education Law Section 3020, to statutory mandates.

53. The UFT's continual delay in the arbitrator selection process, resulting in

an inability to seat a full panel, coupled now with its refusal to participate in the very process to

12-

resolve this precise circumstance, violates the April Letter Agreement, and undermines the intent

of both that agreement, and the Education Law.

54. Further, plaintiff plainly establishes irreparable harm,

55, A party must prove irreparable harm to be imminent, not remote or

speculative. See Golden v. Steam Heat,216 A.D.2d440 (2d Dept. 1995); see also Valentine v.

Schembri, 212 A.D.2d 371 (1st Dep't 1995)(reversing grant of preliminary injunction because

allegations of irreparable harm from loss of health insurance were speculative). Forthe purposes

of a preliminary injunction, "irreparable" harm is "a continuing harm resulting in substantial

prejudice by the acts sought restrained if permitted to continue pendente lite." Chrysler Corp. v.

Fedders Corp., 63 A.D.2d 567, 569 (lst Dep't 1978).

56. As noted above, and set forth in the Complaint, and the DOE afhrmations

that accompany this application, the delays caused by the UFT for this school year, as well as in

prior school years, and its refusal to participate in the AAA process, irreparably harm the DOE.

57. Pursuant to the CBA, and the April Letter Agreement, while awaiting their

disciplinary hearing and pending the arbitrator's ultimate post-hearing determination,

nonsupervisory pedagogical personnel continue to receive full salary and benefits, with

exceptions only for certain serious misconduct and sexual offenses involving students or minors.

See Complaint, fl "45."

58. Thus, by failing to agree to a full arbitrator panel, the UFT delays the

adjudication of disciplinary cases, and causes an untenable backlog of charged personnel,

awaiting hearings -- for months on end -- during which time they are entitled to full salary and

benefits. See Complaint, fl "45."

-13-

59. Accordingly, the DOE is ineparably harmed because, by failing to agree

to a full panel, and refusing to participate in the AAA process, the UFT limits, unjustifiably, the

number of arbitrators to preside over, and reduce, a tremendous backlog of disciplinary cases,

This constraint thereby extends -- unreasonably -- the time during which the DOE must employ -

- and pay -- those charged personnel who are subject to termination. See September 19, 2013,

letter, which is annexed to the Complaint as Exhibit "2,"

60. This delay also impairs the effectiveness of DOE's ability to discipline its

employees, maintain its position in the community and safeguard the children entrusted to its

care. See 94,'I\zfnffer nf T)nrroles r¡ Rri Of F'rhrc 87 A.D.3d at 857 (lst Dep't 20ll)

("Petitioner's unacceptable behavior compromised his ability to function as a teacher and the

school's position in the community,"); see also Matter of Bd. of Educ. of Cit)' Sch. Dist. of Cit),

of NY v Ostrin,2012 NY Slip Op 30737U (N.Y, Sup. Ct. Mar.21,2012) ("This Court

recognizes the public policy of ensuring the safety and welfare of school children, particularly

because of the important role teachers play in their students' lives,")

6L Such harm cannot be repaired.

62. Further, delayed disciplinary hearings impact DOE's schools,

administrators, other teachers, and students, causing harm to their budget, staffing and

educational needs,

63. Assuaging these very considerations led to the April Letter Agreement,

As the UFT has breached this agreement, and refused to engage in an alternative process to

arrive at a full panel, and address the backlog, it has caused irreparable harm.

64. Finally, a plaintiff seeking a preliminary injunction must also demonstrate

that the balance of the equities tips in its favor. The UFT cannot point to any possible harm, let

-t4-

alone ineparable harm, resulting from participating in the AAA selection process to select

additional impartial arbitrators to establish the parties' permanent rotational panel. A 39-

arbitrator, full panel, clearly will expedite the process of adjudicating disciplinary hearings and

reducing the existing backlog.

65. Indeed, the UFT does not disagree, having claimed to want a "swift, fair

adjudication of $3020-a charges." September 20, 2013, letter, which is annexed to the

Complaint as Exhibit "3."

66. Under the April Letter Agreement, the DOE and the UFT agreed to a

rotational panel composed of 39 arbitrators. The continuing failure to have a full panel of

arbitrators can be remedied -- as per the parties' own agreement -- by initiating the AAA process.

67 . As such, the balance of the equities tips in favor of the DOE, which seeks

to swiftly adjudicate disciplinary cases, reduce and prevent further backlog, and resolve -- as

quickly as possible -- the employment status of personnel presently not teaching students,

68. No prior application has been made for the relief requested herein.

- 15-

\ilHEREFORE, plaintiff respectfully requests that the annexed Order to Show

Cause be signed, and that the Court grant plaintiff s application for a preliminary injunction by

issuing an order enjoining the defendant from refusing to participate in, or otherwise delaying,

the arbitrator selection process, and directing the defendant to participate in good faith, and

pursuant to Article 2l(G)(2) of the parties' collective bargaining agreement, in selecting

additional impartial arbitrators in accordance with the AAA procedures until 39 arbitrators are

selected to establish the parties' permanent panel, and for such other and further relief as this

Court deems just and proper,

Dated: New York, New YorkSeptember 30,2013

GHTON

-16-

MICHAEL A, CARDOZOCorporalion Counsel

THe CIw oF NEW YonxLaw DnpaRTMENT

IOO CHURCH STREETNEV/ YORK, NY IOOOT

MAX\ryELL D. LEIGHTONphone: (212) 356-2472

fax: (212) 788-8877email : [email protected]

September 27,2013

Supreme Court of the State of New YorkCounty of New York60 Centre StreetNew York, New York 10007Attn: County Clerk

Re: Bd. of Educ. v. United Federation of TeachersIndex No. 451734113

To Whom It May Concern:

Please accept this Request for Judicial Intervention and proposed Order to ShowCause without fee, and mark the same as acceptable for filing. This fee exemption is beingclaimed pursuant to CPLR $ 8019(d).

Thank you for your cooperation.

MaxwellAssistant C Counsel

S



NEV/ YORK SUPREME COURT

::ill:ï"_Y.:?Y ..._.._._..x

BOARD OF EDUCATION AF'FIDAVIT OF SERVICE

UNITED FEDERATION OF TEACHERS Index No.: 45173412013

x

STATE OF NEV/ YORK ): SS.:

Law Dept No,: 201 3-045987

coLrNTY OF NEW YORK )

JASON DYER, being duly sworn deposes and says that:

1 , The deponent is not a party to the action and is l8 years of age or older.

2. On October l'L 2013 the deponent served the Order to Show Cause upon the

following person or persons:

Adam S. Ross, United Federation of TeachersAttorney for the Defendant52 Broadway NYC NY 10004

The number of copies served on each of said persons was 1.

The method of service on each of said persons was:

Pursuant to CPLR 2103(bX3), where the person served is an attorney, where a

person is in charge of the offrce, by leaving the paper(s) person,

J

J

4

Sworn to before me thisl't day of October ,2073

NOT

MOSES S, WILI.IAMSCommissroner of Deeds

Crry o' t'J.'vr 'iork No 2-j2722Celrf .cüt,J f:irdd'n New york Countv.-o'.'¡:S,.ioì Ë-.^lre: 1.., I .lO

¿ j-

ì



SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------- X BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF NEW YORK,

::

: Plaintiff, : Index No. 451734/2013

: -against- :

: UNITED FEDERATION OF TEACHERS, : :

Defendant. : ------------------------------------------------------------------- X

DEFENDANT UNITED FEDERATION OF TEACHERS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane New York, New York 10038 (212) 806-5400



i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS ..............................................................................................................4

ARGUMENT ................................................................................................................................12

POINT ITHE BOE CANNOT ESTABLISH A LIKELIHOOD OF SUCCESS ON THE MERITS AS DISCUSSIONS ARE ONGOING ......................................14

A. The UFT Has Not Breached The April Letter Agreement Or The CBA ...............15B. Discussions Regarding The Number Of Arbitrators Are Explicitly Authorized

Under The April Letter Agreement And Cannot Form The Basis Of A Breach ...18

POINT IITHE BOE HAS NOT ESTABLISHED IMMINENT IRREPARABLE HARM ...................................................................................................................19

A. The BOE’s Purported Economic Loss Does Not Constitute Irreparable Harm .....19B. The Injunction Is Not Necessary To Protect Children’s Safety .............................20C. The Relief Requested Is Not Likely To Prevent The Alleged Harms ...................21D. The BOE Cannot Claim Delay As A Harm When It Has Contributed To The

Delay ......................................................................................................................22

POINT IIIA BALANCE OF THE EQUITIES TIPS DECIDEDLY IN THE UFT’S FAVOR .................................................................................................................23

CONCLUSION ..............................................................................................................................24

ii

TABLE OF AUTHORITIES

Page(s)CASES

Amarant v D'Antonio, 197 A.D.2d 432 (1st Dept. 1993) .............................................................................................22

Destiny USA Holdings, LLC v. Citigroup Global Markets Realty Corp., 24 Misc.3d 1222(A) (Sup. Ct. Onondaga Cnty. July 17, 2009) ..............................................12

Electrolux Corp. v Val-Worth, Inc., 6 N.Y.2d 556 (1959) ................................................................................................................22

Golden v. Steam Heat, Inc., 216 A.D.2d 440 (2d Dept. 1995) .............................................................................................19

IDT Corp. v Tyco Group, 13 N.Y.3d 209 (2009) ........................................................................................................16, 17

IDT Corp. v Tyco Group, S.A.R.L., 104 A.D.3d 170 (1st Dept. 2012) .............................................................................................17

McNiece v. Sohmer, 29 Misc. 238 (Sup. Ct. N.Y. Cnty. 1899) ................................................................................13

Municipal Labor Committee v. City of New York, No. 101028/2013 (Sup. Ct. N.Y. Cnty. Sept. 4, 2013) ..............................................................1

Municipal Labor Committee v. City of New York, No. 652814/2013 (Sup. Ct. N.Y. Cnty. Sept. 30, 2013) ............................................................1

Rentways, Inc. v O'Neill Milk & Cream Co., 308 N.Y. 342 (1955) ................................................................................................................14

Second on Second Cafe, Inc. v. Hing Sing Trading, Inc., 66 A.D.3d 255 (1st Dept. 2009) .........................................................................................12, 19

Sherman v Pace Univ., 17 A.D.3d 282 (1st Dept. 2005) ...............................................................................................22

St. Paul Fire and Marine Ins. Co. v. York Claims Serv., Inc., 308 A.D.2d 347 (1st Dept. 2003) .......................................................................................13, 19

W.W.W. Assoc., Inc. v Giancontieri, 77 N.Y.2d 157 (1990) ..............................................................................................................14

iii

STATUTES

Educ. Law §3020 .............................................................................................................................4

Educ. Law §3020-a ..........................................................................................................................4

Educ. Law §3020-a(2)(b) ...............................................................................................................20

OTHER AUTHORITIES

Melissa Russo and Tom Burke, I-Team: Arbitrators for Teacher Misconduct Cases Are Quitting, http://www.nbcnewyork.com/investigations/I-Team-Arbitrators-For-Teacher-Misconduct-Cases-Are-Quitting-157386515.html ....................................................21

PRELIMINARY STATEMENT

This application is nothing more than an attempt by the Board of Education of the City

School District of the City of New York (“BOE”) to circumvent the agreed upon process of

proposing arbitrators and jointly selecting a panel with the United Federation of Teachers

(“UFT”). Instead, just like in other areas where the City of New York has recently been rebuffed

by the courts in seeking to arrogate to itself decisions that must be made jointly, the BOE has

made a unilateral determination that the AAA should appoint arbitrators.1 Because of its dislike

for due process arbitration provisions required by law, the BOE and the Chancellor (appointed

by the Mayor) are eager to manufacture alleged failings of the teacher disciplinary process and

create a political maelstrom around such purported failings rather than work with the UFT to

ensure that the process functions fairly and expeditiously and as agreed upon.

The BOE and UFT are parties to a letter agreement dated April 15, 2010 (the “April

Letter Agreement”), modifying the existing collective bargaining agreement (“CBA”) to increase

the number of arbitrators (also sometimes referred to as hearing officers) designated to hear

disciplinary charges preferred against teachers and other tenured pedagogues. The Agreement

requires that the parties agree on the arbitrators. Contrary to the BOE’s implication, the UFT has

and continues to engage in the selection process in good faith. In fact, the BOE admits that there

are presently outstanding a list of 20 proposed arbitrators from both sides and that, in the last two

years, the parties have agreed on 30 arbitrators. The UFT has communicated its willingness to

continue discussions of those proposals. The BOE’s failure to respond shows that if any party

1 The City’s effort to enact changes unilaterally were most recently rebuffed in two cases concerning health benefits. See Municipal Labor Committee v. City of New York, No. 652814/2013 (Sup. Ct. N.Y. Cnty. Sept. 30, 2013) (granting a preliminary injunction preventing the City from unilaterally issuing a request for proposals to procure employee health benefits in violation of a letter agreement requiring that the City and the union jointly participate in all aspects of the procurement process); Municipal Labor Committee v. City of New York, No. 101028/2013 (Sup. Ct. N.Y. Cnty. Sept. 4, 2013) (enjoining the City from unilaterally proceeding with an eligibility audit for dependent health benefits where the process for conducting the audit needed to be collectively bargained.)

2

has breached the Agreement or acted in bad faith it is the BOE by attempting to strong-arm the

UFT through this action rather than doing the work necessary for achieving consensus.

Indeed, aside from the use of conclusory statements (“intransigent delay,” “continued

failure to agree”), there are no allegations by the BOE rising to the level of breach. As set forth

in detail below, it was the UFT and its affiliate, New York State United Teachers (“NYSUT”),

that (i) initiated the arbitrator selection process months prior to the start of the school year, (ii)

unsuccessfully urged the BOE to agree not to drop any existing arbitrators from the panel, (iii)

twice proposed lists of additional arbitrators, and (iv) prepared the invitation letters distributed to

existing and newly selected arbitrators. The BOE omits this collaboration in its presentation of

the facts, with the Complaint jumping directly from a conclusory (and inaccurate) statement that

the BOE initiated discussions in July 2013 (Complaint, ¶20) to the BOE’s sudden letter, dated

September 19, 2013, threatening litigation and demanding the UFT assent to its unreasonable

demands within 24 hours (Complaint, ¶21). The productive and mutual process that took place

in the intervening period as well as the BOE’s own actions that resulted in six fewer panel

members are glaringly missing. The BOE’s complaint focuses almost exclusively on an

exchange of letters in quick succession between September 19 and September 25, seemingly

designed to serve only as exhibits to this Complaint rather than good faith attempts to select

arbitrators.

The BOE takes the position that if there are not 39 agreed-to arbitrators who accept

positions at the very start of the school year, the UFT necessarily breached the April Letter

Agreement. That is neither the fact nor the law. Agreements to agree, such as the one at issue

here, require good faith efforts on both sides which, particularly where, as here, success also

3

depends upon the consent of the proposed arbitrators, is not guaranteed to produce the desired

results. Nor would the BOE’s sought-after injunction cure this difficulty.

Accordingly, the BOE cannot meet the requirements for a standard preliminary

injunction, let alone the mandatory one they seek, granting them the ultimate relief they desire:

compelling the UFT to affirmatively participate in the American Arbitration Association’s

(“AAA”) selection process. The BOE has no likelihood of success on the merits because, while

not all 39 arbitrators have been selected and accepted, the UFT has and continues to work with

the BOE towards that goal. The BOE also cannot claim any imminent irreparable harm, for mere

delay in processing disciplinary charges is (1) not a new occurrence either for the parties or other

school districts within the State; nor does it (2) necessarily increase personnel costs or harm

students. Where a teacher should not be permitted to continue in a classroom, the BOE currently

has the authority to reassign that teacher. Likewise, any claimed increased cost is premised on a

presumption that does not follow experience: that a significant portion of the charges will be

sustained and the teachers terminated. That has simply not been the case.

To be clear, the UFT has, by the BOE’s admission, agreed on arbitrators (at least 14 of

them) in recent months. The UFT has also repeatedly proposed arbitrators, ten of which are

outstanding. Contrary to the implication of the BOE, the UFT is not responsible for the rate at

which agreed-upon arbitrators accept or decline invitations. This last issue is of vital import as it

falls outside the agreement and the power of the parties as well as the power of the AAA. Thus,

the AAA process, identified by the BOE as a silver bullet, offers no guarantee of coming to a

panel of 39 arbitrators as the arbitrators on the AAA lists are equally free to decline an invitation

to join the panel. Indeed, some of the arbitrators who have declined the parties’ invitation to join

the panel are also on the AAA list.

4

Finally, while the BOE spends much space in its papers demonstrating that the April

Letter Agreement is part of the existing CBA so as to invoke the AAA process contained in the

CBA (not the April Letter Agreement), the BOE overlooks entirely that disputes among the

parties as to the implementation of the CBA are to be arbitrated, not litigated. Accordingly, the

UFT intends to move to dismiss or stay this action and compel arbitration of the issue. The

matters raised are already the subject of a grievance filed on October 4, 2013, by the UFT.

STATEMENT OF FACTS

Pursuant to State Education Law, tenured pedagogues have certain due process rights.

See generally, Educ. Law §§3020 and 3020-a. These rights include the preferring of charges and

a hearing before an impartial hearing officer to determine whether there exists just cause for

discipline. The State Education Department (“SED”), pursuant to statute, pays the hearing

officers out of State appropriations. Also pursuant to Education Law, the parties may

collectively bargain and, within certain restrictions, agree to a modification of the statutory

process. That is precisely what they have done. Article 21(G) of the CBA between the UFT and

the BOE covering teachers (and corresponding portions of other CBAs), sets forth a modified

Educ. Law §3020-a process. Among the modifications collectively bargained was the creation

of a standing rotational panel of arbitrators, agreed to by both parties, that would hear

disciplinary charges. The 2007-2009 CBA provided for 20 arbitrators.

The UFT, through its state affiliate, NYSUT, typically provides legal representation to its

members in the event disciplinary charges are preferred. Claude Hersh, Assistant General

Counsel for the New York City Office of the General Counsel of NYSUT, oversees the provision

of those services and works with UFT General Counsel, Adam Ross, in administering the Article

21(G) process.

5

The April Letter Agreement

In an effort to facilitate the disciplinary hearing process, the parties entered into the April

Letter Agreement, which, inter alia, amended Article 21(G), increasing the number of arbitrators

to 39. (Complaint, Ex. 1). The Agreement also provided a mediation program designed to

resolve cases more expeditiously so they would not require hearings before arbitrators. In the

year following the agreement, both parties were able to agree to, and seat, 39 arbitrators.

(Affirmation of Claude I. Hersh in Opposition to Plaintiff’s Application for a Preliminary

Injunction, dated October 16, 2013 (“Hersh Aff”.), at ¶4). Additionally, during that first year, the

mediation program proved successful, resulting in some 46% of all cases submitted to mediation

settling, without need to resort to a hearing. (Hersh Aff., ¶ 5). Of the cases involving alleged

misconduct (“ATU” cases) submitted to mediation, 43% were settled. Of the competency cases

submitted (“TPU” cases), 56% were settled. Indeed, even without a formal mediation process,

during the 2009-10, 2010-11 and 2011-12 school years, settlements ranged from 63% to 75% of

all cases heard that year. (Hersh Aff., ¶ 5).2 The vast majority of cases either settled or resulted

in some form of punishment other than termination. (Id.)

While setting 39 as the target number, the April Letter Agreement also recognized that

adjustments may be necessary, explicitly providing

Representatives of the UFT and DOE shall meet monthly, or less frequently if the UFT and DOE agree, for the first year of this Agreement and at least twice a year thereafter (i) to agree on the number of hearing officers hearing expedited cases, (ii) to discuss the appropriateness of the number of hearing officers, including the possibility of agreeing to increase or decrease the number of hearing officers on either the incompetence or misconduct panels on either a temporary or permanent basis, and (iii) to discuss the

2 The UFT believes the settlement figures are so compelling that in addition to discussing the possibility of a standing mediation process with the BOE, it has submitted a contract demand in the statutory fact finding impasse resolution process currently ongoing between the parties.

6

appropriateness of the number of probable cause arbitrators, including the possibility of agreeing to increase or decrease the number of probable cause arbitrators. If the DOE believes there is a need for more hearing officers to comply with the timeliness set forth in this Agreement, it shall request that the UFT agree to increase the number of hearing officers and the UFT shall not unreasonably deny an increase.

(April Letter Agreement, p. 7) (emphasis added). This provision allows the parties to discuss

further changes to this number of arbitrators going forward.

After the first year of the April Letter Agreement, the process for selecting arbitrators

was complicated by external factors that the BOE attempts to down-play in an effort to blame the

UFT. SED, responsible for providing compensation for the arbitrators, until recently had a

history of failing to pay at all or on time. This caused a number of arbitrators to decline

invitations to join the panel, and prompted existing arbitrators to quit. In 2012, the accumulation

of back pay was so great, that 10 of the 24 then-seated arbitrators quit and a group of 33

arbitrators sued the State for $5.1 million in back pay. (Hersh Aff., ¶ 6). Thus, while the parties

were able to seat 39 arbitrators the first year, they have been unable to do so in the subsequent

years despite continuous efforts to propose candidates, agree and send invitations. Needless to

say, panel positions became considerably less attractive to potential arbitrators when it became

clear compensation would be lacking. Multiplying the burden, the BOE declined to continue the

mediation program.

Arbitrator Selection For The 2013-14 School Year

Recognizing the difficulties in identifying mutually agreeable, qualified arbitrators who

would be willing to accept a role on the panel, it was the UFT that contacted the BOE well

before the start of the school year to commence the selection process. On June 27, 2013, Mr.

Hersh contacted Naeemah Lamont, Director of the Teacher Performance Unit of the BOE, and

7

Laura Hemans Brantley, Director of the Administrative Trials Unit of the BOE, suggesting that

the parties begin discussions regarding the 2013-2014 panel of arbitrators. (Email from Claude

Hersh, June 27, 2013, Hersh Aff., Ex. 1) Both parties participated in a conference call on July 8,

2013 to discuss the desirability of a mediation program as well as the selection of arbitrators. In

advance of the call, Mr. Hersh recommended to the BOE that the parties agree to forgo the

option of dropping arbitrators from the then existing panel:

At this time, the UFT is not interested in dropping anyone from the Panel and hopes that we can just invite everyone back since we really need to have cases start moving immediately in September.

(Email from Claude Hersh, July 1, 2013, Hersh Aff., Ex. 2). Nevertheless, during the July 8 call,

the BOE insisted that it intended to drop three arbitrators. (Hersh Aff., ¶ 8). To balance the

panel, the UFT also determined to discontinue three arbitrators, which, along with one

resignation, combined to reduce the number of existing arbitrators to 13.

Despite precipitating a substantial drop in the number of arbitrators, the BOE claimed on

July 8 that it was anxious to achieve a full complement of arbitrators. (Hersh Aff., ¶ 9). The

UFT shared the goal of selecting an appropriate number of acceptable arbitrators. The parties

agreed to each propose some 10-15 arbitrators in the following few weeks. Accordingly, on July

23, 2013, both sides exchanged lists of proposed arbitrators, with the BOE proposing 15 names

and the UFT 12. (Email from Claude Hersh, July 23, 2013, Hersh Aff., Ex. 3.; Email from

Naeemah Lamont, July 23, 2013, Hersh Aff., Ex. 4). On a July 24 call, the BOE approved draft

invitation letters that Mr. Hersh had previously offered to prepare, but for which he needed

certain information from the BOE. The parties also discussed the reassignment of cases and the

approval of arbitrators. (Hersh Aff., ¶ 11).

8

On July 29, 2013, each party agreed to six of the arbitrators proposed by the other party.

(Email from Claude Hersh, July 29, 2013, Hersh Aff., Ex. 5; Email from Laura Brantley, July 29,

2013, Hersh Aff., Ex. 6). Additionally, two arbitrators were on both lists, for a total of 14 newly

agreed to arbitrators. Thus, contrary to the BOE’s implication, the selection process has been

proceeding apace.

On August 1, 2013, the BOE finally provided the information necessary to finalize the

invitation letters. Mr. Hersh completed the invitation letters and some 27 letters (13 to existing

arbitrators and 14 to newly selected arbitrators) were sent out on August 15, 2103. (Hersh Aff.,

Ex. 7). As of August 29, 2013, four BOE-nominated arbitrators declined, two UFT-nominated

arbitrators declined, one arbitrator nominated by both parties declined, as well as one existing

arbitrator, bringing the total to 19 potential arbitrators. (Hersh Aff., ¶ 14). (Had the BOE agreed

to mutually forgo dropping existing arbitrators, that number could have been 25).

The parties thereupon moved to continue the process, holding another call on August 29,

2013, with both sides again agreeing to submit new lists of arbitrators. (Hersh Aff., ¶ 15). On

September 6, 2013, each party submitted a list of 10 proposed arbitrators to the other. (Email

from Claude Hersh, September 6, 2013, Hersh Aff., Ex. 8; Email from Naeemah Lamont,

September 6, 2013, Hersh Aff., Ex. 9).

On September 16, 2013, the UFT, together with Mr. Hersh, met with BOE

representatives to discuss the parties’ experience with cases settling and the number of arbitrators

the each party believed to be necessary. At this meeting, the BOE indicated it would agree to 30

arbitrators. Given the significant rate at which cases settled, the UFT proposed that in

conjunction with a mediation program similar to that adopted in 2010 and temporarily

reinstituted during Summer 2013, it believed 24 arbitrators would be sufficient. (Hersh Aff., ¶

9

17). At no time did either the UFT or Mr. Hersh state that the UFT declined to continue the

selection of arbitrators or refuse to work towards a panel of 39 arbitrators if agreement on a

lower number could not be reached. Nor did the BOE provide at that time, or has it provided

since, a response to the lists of proposed arbitrators exchanged on September 6, 2013. (Hersh

Aff., ¶ 18).

Instead, some three days later, the BOE sent a letter accusing the UFT of unspecified

delay, demanding that the UFT agree by the next day to select 30 arbitrators within the

subsequent 14 days. (Complaint, Ex. 2). Despite the many months of progress made by the

parties, the letter threatened immediate legal action against the UFT if it did not consent within

the unreasonable and arbitrary one-day timeframe. The letter inexplicably held the UFT solely

responsible for there not being more arbitrators who accepted positions. The BOE made no

reference to the fact that many of the arbitrators that had been proposed so far had declined the

invitation. The letter neither discussed the BOE’s own decision to drop arbitrators against the

UFT’s wishes at the beginning of the process nor did it address the fact that the UFT currently

had an outstanding list of proposed arbitrators awaiting the BOE’s response. The BOE’s letter

also made no mention of the UFT’s proposal to continue the successful mediation program that it

had refused to continue. Instead, the BOE claimed that the difficulty in selecting arbitrators was

entirely due to the UFT attempting to negotiate with the BOE for a smaller number of arbitrators:

The UFT’s actions appear motivated by a desire to force the DOE to agree to a modification of the April Letter Agreement which would reduce the total number of arbitrators assigned to hear 3020-a cases to a number well below that in the April Letter Agreement.

(September 19, 2013 Letter, Complaint, Ex. 2).

In fact, no modification is necessary, as the April Letter Agreement explicitly provides

that the parties should meet to discuss whether more or fewer arbitrators would be appropriate.

10

Thus, the BOE’s threats were based on nothing more than the UFT exercising its right under the

April Letter Agreement to engage in such discussions.

The letter contained the following ultimatum:

We seek your confirmation by the close of business tomorrow, September 20, 2013, that the UFT will agree to a panel of 30 arbitrators, with selection to be completed in accordance with the terms of the contract by October 4, 2013. Should the UFT fail to agree to this, the DOE will pursue all legal remedies available to it including, but not limited to, invoking its right under the collective bargaining agreement to use the arbitrator selection process provided by the American Arbitration Association (AAA) procedures.

(September 19, 2013 Letter, Complaint, Ex 2). The BOE provided no justification for either the

September 20 date or the October 4 date. Furthermore, the BOE provided no explanation for

how, in light of the difficulties the parties had faced thus far in agreeing to arbitrator candidates

and in getting those candidates to accept invitations, the UFT could possibly comply with this

demand.

The following day, on September 20, 2013, the UFT answered the BOE, but the BOE

offered no response to that answer or on the now two-week outstanding list of proposed

arbitrators. (Hersh Aff. ¶ 24). Instead, on the next business day, September 23, 2013, the BOE

wrote directly to the AAA attempting to unilaterally activate the contractual impasse resolution

process provided in the CBA without the parties having actually reached an impasse as to the

selection of arbitrators. (Complaint, Ex. 4). (Indeed, contrary to the conclusion drawn by the

BOE, with 19 arbitrators selected and 20 outstanding proposals, the parties could have, assuming

the arbitrators accepted, achieved the BOE’s goal of 30 arbitrators rather than engage in

litigation). Similar to the BOE’s September 19, 2013 letter, this letter provided no background

11

as to the parties progress in selecting arbitrators and difficulties in obtaining acceptances from

those they invited. Instead, it merely stated that the parties had been unable to agree thus far.

Again, the following day, the UFT responded by letter dated September 24, 2013.

(Complaint, Ex. 5). The UFT informed the AAA that as the parties continue to negotiate the

selection of arbitrators, the provision cited by the BOE—applicable to instances where the

parties “cannot agree”—had not been triggered. The UFT requested that the AAA refrain from

becoming involved until it was actually appropriate for it to do so under the CBA.

The BOE wrote again to the AAA on September 25, 2013, admitting that the parties have

been agreeing on arbitrators and inviting them to join their panel, but attempting to somehow

blame the UFT for the low acceptance rate. (Complaint, Ex. 6). Moreover, having identified an

important reason for the inability to employ a full complement of arbitrators, the BOE failed to

indicate how the parties would fare any better in an AAA process, where the arbitrators are

similarly free to decline the invitation. Likewise, the BOE acknowledged that there were

outstanding lists of arbitrators, but for the first time blamed the UFT for not being prepared to

proceed. Yet, the BOE had itself not responded to the UFT’s list. The letter went on to insist

that the AAA commence the selection process over the UFT’s objection.

Recognizing that it would be inappropriate to intervene without the support of both

parties, the AAA rejected the BOE’s request to intervene on September 26, 2013. (Hersh Aff., ¶

27). On the same day, the BOE commenced this action. The following day, the BOE requested

a mandatory injunction seeking to compel UFT participation in the AAA process despite the

BOE still not having responded to the UFT’s September 6 list of proposed arbitrators.

Despite the BOE’s obstructionist behavior, the UFT continues to believe the parties can

make progress in their selection of arbitrators. Accordingly, on October 15, 2013, the UFT

12

issued a letter to the BOE pointing out that there are still outstanding lists and inviting the BOE

participate in an exchange of comments:

The UFT remains ready to provide you with names of agreeable hearing officers from your list. I write to inquire whether the DOE is prepared to do the same from the UFT list.

(Hersh Aff., Ex. 10).

ARGUMENT

The BOE’s application for a preliminary injunction does not even attempt to conceal its

mandatory nature, seeking to enjoin the UFT from “refusing to participate” in the AAA arbitrator

selection process, i.e., requiring that the UFT give up its contractual right to propose and jointly

select arbitrators with the BOE and skip directly to an impasse resolution mechanism, despite

there being no existing impasse. See Destiny USA Holdings, LLC v. Citigroup Global Markets

Realty Corp., 24 Misc.3d 1222(A), *7 (Sup. Ct. Onondaga Cnty. July 17, 2009) (“A mandatory

injunction . . . directs a party to perform a specific act to maintain the status quo”). Yet, the BOE

has not addressed the standard for a mandatory injunction, let alone satisfied its requirements. It

is black letter law that

[t]he party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor . . . . Moreover, a mandatory preliminary injunction . . . by which the movant would receive some form of the ultimate relief sought as a final judgment, is granted only in ‘unusual’ situations, ‘where the granting of the relief is essential to maintain the status quo pending trial of the action’ . . . . [C]ourts are generally ‘reluctant’to grant mandatory preliminary injunctions . . . and such relief will be granted only where ‘the right [thereto] is clearly established’ . . . .

Second on Second Cafe, Inc. v. Hing Sing Trading, Inc., 66 A.D.3d 255, 264-65 (1st Dept.

2009)) (internal citations omitted) (emphasis added). See also Destiny USA Holdings, LLC v.

13

Citigroup Global Markets Realty Corp., 24 Misc.3d 1222(A), *7 (Sup. Ct. Onondaga Cnty. July

17, 2009) (“Generally, New York courts consider mandatory injunctions to be among the most

severe of remedies. . . . It has been said that mandatory injunctions can be fraught with extreme

danger and should, therefore, be granted only with extreme caution.”) (internal citations

omitted); McNiece v. Sohmer, 29 Misc. 238, 240 (Sup. Ct. N.Y. Cnty. 1899) (“Mandatory

injunctions are at all times granted with extreme caution, and, as a general rule, are never granted

pendente lite, or where the relief asked for is doubtful.”) (internal citations omitted)

The injunction sought by the BOE here would provide the BOE precisely what the courts

have cautioned against: the ultimate relief sought—namely, allowing the AAA to select

arbitrators through the strike and rank method rather than requiring the BOE to discuss and

jointly select arbitrators with the UFT pursuant to the agreement—and destroy rather than

preserve the status quo, as currently the parties each have outstanding lists of proposed

arbitrators. (Hersh Aff., ¶¶ 18, 27-28; Leighton Aff., ¶22). New York courts have held that

under these very circumstances a mandatory injunction should not be granted. St. Paul Fire and

Marine Ins. Co. v. York Claims Serv., Inc., 308 A.D.2d 347, 349 (1st Dept. 2003) (“A

mandatory injunction should not be granted, absent extraordinary circumstances, where the

status quo would be disturbed and the plaintiff would receive the ultimate relief sought, pendent

lite”).

The BOE cannot demonstrate any of the required elements for a preliminary injunction

nor can it demonstrate the extraordinary circumstances necessary for a mandatory injunction. As

a result, the injunction should be denied.

14

POINT I THE BOE CANNOT ESTABLISH A LIKELIHOOD OF SUCCESS ON THE MERITS

AS DISCUSSIONS ARE ONGOING

The BOE’s allegations of breach and bad faith are based on two suppositions: the BOE’s

belief that the arbitrator selection process is taking too long, and the BOE’s view that the UFT’s

requests that the parties agree on fewer than 39 arbitrators together with a mediation process

constitutes bad faith. Neither of these arguments can sustain the BOE’s breach of contract claim.

First, though the BOE repeats in several places that the UFT has caused unacceptable

delay, it points to no actual facts supporting that conclusion, nor any supporting case law.

Indeed, in service of this wholly conclusory argument, the BOE’s Complaint strategically leaves

out any discussion of the work and progress made by the parties in selecting arbitrators during

the past school year or between June and September of this year. See discussion supra, at 6-10.

Instead, the Complaint goes from incorrectly stating that it was the BOE who initiated

discussions in July 2013 (Complaint, ¶20), immediately to the BOE’s September 19 letter

threatening legal action if the UFT did not acquiesce to the BOE’s unreasonable demands within

24 hours (Complaint, ¶21). This action was commenced a mere seven days after that initial

letter.

Nor is the fact that there are not now 39 selected arbitrators determinative. First, that fact

alone does not demonstrate which party has breached, if any. Nor does it mean the parties are

necessarily at an impasse. The selection process moves in rounds and must respond to the

independent actions of the invited arbitrators in accepting or declining the invitations.

The BOE takes far too narrow a view of the CBA and April Letter Agreement, focusing

on one or two specific provisions out of context. See generally, W.W.W. Assoc., Inc. v

Giancontieri, 77 N.Y.2d 157, 162 (1990); Rentways, Inc. v O'Neill Milk & Cream Co., 308 N.Y.

15

342, 347 (1955) (holding that interpreting a provision in light of the contract as a whole is a

“cardinal principle” of contract law). Looking at the contract in its entirety, neither issue cited

by the BOE can sustain a cause of action for breach of contract, as all of the UFT’s actions have

been within its rights under the CBA and the April Letter Agreement. Moreover, as the UFT

will set out in its anticipated motion to compel arbitration, disputes as to the meaning of the

Agreement and the parties’ compliance therewith fall squarely within the CBA’s arbitration

clause and have no place before this Court.

A. The UFT Has Not Breached The April Letter Agreement Or The CBA

The BOE claims that the UFT has breached the CBA and the April Letter Agreement by

failing to comply with the arbitrator selection process in Article 21(G)(2). That provision states:

As discussed and agreed upon, all parties would be served better by the implementation of a permanent arbitration panel. The panel members must be agreeable to both sides, however, if the parties cannot agree to a full complement of 20 panel members, additional impartial arbitrators shall be selected by the parties in accordance with the American Arbitration Association (AAA) procedures (strike and rank method) from list(s) provided by the AAA until the desired number (20) is reached to establish such permanent panel.” CBA Article 21(G)(2) (emphasis added).

Thus, the contract explicitly states that both sides must agree to all arbitrators. This does not

mean that each side is forced to agree to empanel every arbitrator proposed by the other side, nor

could the BOE so argue, as it has no more agreed to all of the UFT’s proposed arbitrators than

the UFT to its. Rather, the agreement requires only that each side must negotiate in good faith in

attempting to agree on arbitrators. This is precisely what the UFT has done.

As the BOE cannot allege that the UFT has breached the CBA simply by failing to agree

with every arbitrator the BOE has proposed, the BOE bases its Complaint on the argument that

the naked fact of not yet having 39 arbitrators itself indicates a breach and the UFT’s refusing to

16

participate in the AAA selection process is evidence of the UFT’s breach. The contract clearly

states, however, that this alternate selection process becomes mandatory only if the parties

“cannot agree” to a full panel. There is no contractual deadline for the negotiations. The mere

fact that there are now fewer than 39 arbitrators empaneled speaks more to the difficulty in

obtaining acceptances from arbitrators—which is outside either party’s control—than it does to

any inability to agree on arbitrators to invite. Indeed, the fact that there are presently 20

proposed arbitrators outstanding, in and of itself demonstrates that the parties are still in the

process of selection and not yet at impasse. If any party has declined to continue with the

process it is the BOE by hiding behind this action and failing to respond to the UFT’s invitation

to meet and discuss the outstanding names.

Ultimately, the BOE argues that because there is not a full panel of arbitrators right now,

the joint selection process has failed. (See Leighton Aff. ¶31). But this is not how the Court of

Appeals has interpreted “agreements to agree” like Article 21(G)(2) of the CBA and the April

Letter Agreement.

In IDT Corp. v Tyco Group, 13 N.Y.3d 209 (2009), the Court of Appeals examined a

similar “agreement to agree.” There, pursuant to a settlement agreement, the parties had agreed

to negotiate a contract regarding the right of use of fiber optic capacity. The parties negotiated

on and off for three years before the plaintiff brought an action for breach of contract based on

the defendant’s failure to agree. The Court stated that the failure to agree on terms within three

years was not sufficient evidence for a breach of the agreement. Id. at 214. The Court also held

that the defendant’s submission of contract terms that were inconsistent with the settlement

agreement did not constitute a breach of the settlement agreement, nor did it constitute bad faith

negotiations. As a result, the Court of Appeals affirmed the dismissal of plaintiff’s complaint.

17

Id. at 215. The plaintiff was only allowed to proceed with its action once it had amended its

complaint to include the allegation that the defendant had told the plaintiff that the defendant was

disavowing the agreement and refusing to engage in further negotiations. IDT Corp. v Tyco

Group, S.A.R.L., 104 A.D.3d 170, 176 (1st Dept. 2012).

Under IDT Corp., the BOE cannot succeed in its action for breach of contract as there is

no indication that the parties have reached an impasse. At no time has the UFT stated that it has

refused to consider any additional arbitrators. And, importantly, at no time has the UFT refused

to engage in discussions regarding the BOE’s proposed arbitrators. On the contrary, all

indications are that such discussions are currently ongoing. Even if this Court were to accept all

of the allegations in the Complaint and supporting affirmations as true, all that would

demonstrate is that the BOE is prematurely rushing into court. The BOE does not dispute that

both parties have outstanding lists of proposed arbitrators. Indeed, the UFT has reached out to

the BOE, re-affirming its willingness to continue discussions regarding the outstanding list.

The BOE, however, claims that all of this is irrelevant, as even if all outstanding lists are

agreed upon by both parties there will still be fewer than 39 arbitrators. But the BOE provides

the Court with no reason to think that the currently outstanding lists represent the end of joint

selection process. The UFT is willing to continue providing names until both parties agree on 39

arbitrators, or agree that some lower number of arbitrators is appropriate. The BOE, on the other

hand, essentially asks this Court to rewrite its Agreement with the UFT such that the BOE would

not have to work with the UFT, but simply defer all decisions regarding arbitrators to the AAA.

18

B. Discussions Regarding The Number Of Arbitrators Are Explicitly Authorized Under The April Letter Agreement And Cannot Form The Basis Of A Breach

The BOE also implies that the UFT’s belief that fewer than 39 arbitrators are necessary

indicates bad faith sufficient to support a breach. But this ignores the full scope of the

Agreement between the parties. While the April Letter Agreement sets the number of arbitrators

at 39, the very next paragraph provides:

Representatives of the UFT and the DOE shall meet monthly, or less frequently if the UFT and DOE agree, for the first year of this Agreement and at least twice a year thereafter (i) to agree on the number of hearing officers hearing expedited cases, (ii) to discuss the appropriateness of the number of hearing officers, including the possibility of agreeing to increase or decrease the number of hearing officers on either the incompetence or misconduct panels on either a temporary or permanent basis, and (iii) to discuss the appropriateness of the number of probably cause arbitrators, including the possibility of agreeing to increase or decrease the number of probable cause arbitrators.

(Complaint, Ex. 1, p. 7) (emphasis added).

The Complaint suggests that the UFT has caused delay in the selection process by

suggesting that fewer than 39 arbitrators are needed. (Complaint, ¶¶ 31, 49; Complaint, Ex. 2).

However, the April Letter Agreement explicitly states that this number is open to discussion.

Indeed, if suggesting fewer than 39 arbitrators actually constituted a breach or bad faith

negotiation, the BOE would have breached the April Letter Agreement when it made its offer of

30 arbitrators in the September 19th letter to Michael Mulgrew.

Thus, the BOE has failed to allege any facts that would support a finding that the UFT

acted either in bad faith or breached the April Letter Agreement. Moreover, as the Agreement is

part of CBA, any alleged breaches are subject to arbitration, not litigation.

19

POINT II THE BOE HAS NOT ESTABLISHED IMMINENT IRREPARABLE HARM

To obtain a mandatory injunction, the BOE must allege that the status quo will be upset

by some sort of extraordinary harm, which can only be prevented by the injunction sought.3 St.

Paul Fire, 308 A.D.2d at 349. Additionally, the harm must be imminent, and not remote or

speculative. Golden v. Steam Heat, Inc., 216 A.D.2d 440, 442 (2d Dept. 1995). Putting aside

that the BOE is not seeking to maintain the status quo, but rather destroy the status quo and

obtain the ultimate relief, the BOE’s allegations fall short of the standard for a mandatory

injunction on every level.

A. The BOE’s Purported Economic Loss Does Not Constitute Irreparable Harm

The BOE alleges that, by failing to agree to a full panel of 39 arbitrators by a date certain

(a requirement not found in the April Letter Agreement), the UFT has slowed the disciplinary

process, forcing the BOE to continue paying personnel longer than necessary. (Leighton Aff. ¶

59). Even if paying teachers’ salaries could constitute an irreparable harm, which arguably it

cannot, in this context that harm is completely speculative.

The BOE’s asserted personnel savings are built upon an assumption that, given past

experience, is unlikely to be realized. Specifically, this allegation assumes that every teacher

brought before arbitration on disciplinary charges will actually be terminated. This is not the

case. The vast majority of cases either settle or result in some other form of punishment besides

termination. (Hersh Aff., ¶ 5). The April Letter Agreement, for example, allowed for a

mediation program to run in conjunction with the expedited arbitration process. Some 46% of all

cases submitted to the mediation program settled short of termination. (Id.) Indeed, prior to the

3 Contrary to the BOE’s assertions, it is not the UFT’s obligation to demonstrate irreparable harm in order to avoid a mandatory injunction. (Leighton Aff., ¶ 64). Rather, as discussed supra, the burden is on the party seeking the injunction. See Second on Second Café, 66 A.D.3d at 264-65.

20

formal mediation process, during the 2009-10, 2010-11 and 2011-12 school years, settlements

ranged from 63% to 75% of all cases heard in a given year. (Id.) Thus, the BOE dramatically

overestimates any financial harm it might experience.

B. The Injunction Is Not Necessary To Protect Children’s Safety

In addition to the purported economic harm, the BOE further alleges that the injunction is

necessary to discipline employees and safeguard children entrusted to its care. (Leighton Aff. ¶

60). However, the BOE already has the tools needed to accomplish these goals. New York

Education Law §3020-a(2)(b) permits the BOE to remove a teacher from the classroom pending

adjudication and, per the April Letter Agreement, once a teacher is charged he or she can remain

re-assigned out of the classroom. Such ability is not in any way impacted by not having a full

complement of arbitrators. Simply stated, there is no harm as to student safety, never mind the

extraordinary circumstances required for a mandatory injunction. As to employee discipline, the

speed of the arbitration process has nothing to do with whether legitimate charges are eventually

adjudicated. If a legitimate charge is leveled at an employee, that employee will be disciplined.

Even if the BOE’s application would speed up the process, and as discussed below there is no

reason to believe it would, if the process is delayed some period due to a limited number of

arbitrators it simply would not cause the type of harm that warrants the extraordinary remedy of

a mandatory injunction. Moreover, one of the primary purposes of the April Letter Agreement

was to expedite the processing of disciplinary charges, which for many years had taken longer

than desired by both parties. Although the process has improved, the timeframes have not yet

reached the goal of either the UFT or the BOE. Some delay, however, while the parties continue

the arbitrator selection process is hardly new, let alone an imminent and irreparable harm

requiring a mandatory injunction.

21

C. The Relief Requested Is Not Likely To Prevent The Alleged Harms

The BOE’s request for an injunction is premised on the assumption that the AAA process

will more swiftly provide for a full complement of 39 willing arbitrators. The BOE fails to

mention, however, that the additional arbitrators it seeks are independent agents in this process.

One of the challenges that has stymied both parties thus far is that, until recently, due to

problems with the SED payment system, many arbitrators were getting their fees late, if they got

them at all. (Hersh Aff., ¶ 6; Complaint, Ex. 3). Indeed, in April 2012, a group of 33 arbitrators

sued SED for $5.1 million in back pay, and in June 2012 10 of the 24 arbitrators empanelled by

the parties for the 2011-12 school year quit due to the SED’s payment policies and

delinquencies.4 As a result of the ongoing problems with arbitrator compensation, only five of

the 14 arbitrators invited to join the panel for the 2012-13 school year accepted the offer and this

year a total of 14 arbitrators have been invited but only seven have accepted. (Complaint, Ex. 6).

These compensation issues directly impact the proposed AAA process for empanelling a full

complement of arbitrators. The BOE has offered no explanation, nor is there one, as to how the

mandatory injunction might make potential arbitrators more likely to accept future invitations,

whether the invitation comes from the AAA or directly from the parties. (The BOE has also

failed to address the very likely overlap between the arbitrators being proposed by the parties and

those on the AAA’s roster.) Further, the BOE asserts that at no time since entering into the 2010

Agreement have the parties agreed upon a full complement of 39 arbitrators. (Leighton Aff., ¶

11). While that assertion is untrue and contradicted by their own submissions admitting that in

the first year, prior to SED payment issues, 39 arbitrators were appointed, to now argue that not

4 Melissa Russo and Tom Burke, I-Team: Arbitrators for Teacher Misconduct Cases Are Quitting; available at: http://www.nbcnewyork.com/investigations/I-Team-Arbitrators-For-Teacher-Misconduct-Cases-Are-Quitting-157386515.html.

22

having a full complement of arbitrators is causing some sort of extraordinary, irreparable harm

requiring a mandatory injunction is disingenuous.

D. The BOE Cannot Claim Delay As A Harm When It Has Contributed To The Delay

New York Courts have denied injunctions to parties whose conduct contributed to or

exacerbated the harm that the party seeks to remedy. See, e.g., Electrolux Corp. v Val-Worth,

Inc., 6 N.Y.2d 556, 564 (1959) (denying plaintiff’s injunction against defendant’s unlawful

business practice where plaintiff knew of the business practice and kept silent while it was

profitable for plaintiff to do so); Amarant v D'Antonio, 197 A.D.2d 432, 434 (1st Dept. 1993)

(denying plaintiff’s motion to enjoin conduct in violation of an agreement when defendant’s

conduct was caused by plaintiff’s own violation of a different agreement); Sherman v Pace

Univ., 17 A.D.3d 282 (1st Dept. 2005) (denying injunction of allegedly exorbitant fees when

plaintiff failed to pay overdue account for three years).

The BOE alleges that the UFT’s actions have delayed the selection of arbitrators and the

resolution of 3020-a proceedings. However, the BOE fails to acknowledge its own actions and

inactions. First, it was the BOE who rejected the proposal to retain all of the arbitrators from the

existing panel, resulting in six panel members being dropped. Second, the BOE declined to

continue a successful mediation program, despite its proven ability to expedite the resolution of

cases and more efficiently utilize hearing days. Finally, the BOE still has not responded to the

proposed arbitrators exchanged on September 6, 2013, despite the UFT’s invitation to discuss.

Had the BOE agreed to the 10 arbitrators proposed by the UFT (as it now demands the UFT

summarily agree to imposition of arbitrators through a AAA process), the panel could (if the

arbitrators accepted) be much closer to full capacity. Such behavior cannot justify the injunction

the BOE seeks.

23

POINT III A BALANCE OF THE EQUITIES TIPS DECIDEDLY IN THE UFT’S FAVOR

If granted, this mandatory injunction would deprive the UFT (and its members) the

benefit of its bargain. One of the key services the UFT provides for its members is preservation

of due process rights. The teachers represented by the UFT are entitled to have their interests

represented at all stages of the arbitration process, including the selection of the arbitrators

themselves. To accomplish this objective, the UFT entered into an agreement to agree with the

BOE on arbitrators to hear disciplinary disputes. This agreement ensures that all chosen

arbitrators have the UFT’s (and the BOE’s) approval and that they will provide fair adjudication

of the represented employees.

The BOE’s mandatory injunction seeks to avoid this negotiated agreement by forcing the

UFT to utilize impasse procedures—namely, the strike and rank process administered by the

AAA—where no impasse exists. Discussions are ongoing between the parties. Skipping ahead

to impasse while the parties are still engaged in the joint selection process improperly strips the

UFT of a meaningful role in the selection and approval of arbitrators, putting at risk the fair

adjudication of represented employees.

As discussed supra, the harms that the BOE alleges are neither irreparable nor

extraordinary. Moreover, the purported harms are unlikely to be mitigated by the injunction

sought. On the contrary, should the injunction be granted, the UFT would be denied the

opportunity to fully represent its members. Given that discussions are still ongoing between the

parties, granting the preliminary injunction would cause serious and irreparable harm to the UFT,

and without any actual benefit to the overall process. Thus the balance of the equities favors the

UFT.

24

CONCLUSION

Wherefore, for the reasons set forth herein, as well as those described in the

accompanying Affirmation of Claude I. Hersh, the UFT asks that the Court deny the BOE’s

application for a preliminary injunction.

Dated: October 16, 2013 New York, New York

STROOCK & STROOCK & LAVAN LLP

By: /s/ Alan M. Klinger Alan M. Klinger, Esq.

Dina Kolker, Esq. Beth Norton, Esq. 180 Maiden Lane New York, New York 10038 (212) 806-5400

Counsel for Defendant UFT

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK – – – – – – – – – – – – – – – – – – – – – – – – – – x BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK,

Plaintiff

-against-


Defendant.

::::::::::::

Index No. 451734/13

AFFIRMATION OF CLAUDE I. HERSH IN OPPOSITION TO PLAINTIFF’S APPLICATION FOR A PRELIMINARY INJUNCTION

– – – – – – – – – – – – – – – – – – – – – – – – – – x

CLAUDE I. HERSH, an attorney duly admitted to practice before the Courts of the

State of New York, hereby affirms the following to be true under penalty of perjury:

1. I am the Assistant General Counsel for the New York City Office of the General

Counsel of the New York State United Teachers (“NYSUT”). NYSUT is a Statewide umbrella

organization affiliated with Defendant, United Federation of Teachers (“UFT”), that, inter alia,

provides tenured pedagogues charged with misconduct or incompetence the option of having a

NYSUT attorney represent them in their § 3020-a proceeding without fee. I oversee the

provision of those services and work closely with the UFT to administer and monitor the

disciplinary process applicable to New York City teachers. I submit this affirmation in support

of Defendant’s opposition to Plaintiff’s application for a mandatory injunction requiring the UFT

to participate in the an arbitration selection process through the American Arbitrators

Association (“AAA”). I am fully familiar with the facts set forth below:



2


2. In order to expedite the scheduling of Education Law §3020-a hearings, both the

UFT and the Board of Education of the City School District of the City of New York (“BOE”)

agreed to modify their existing Collective Bargaining Agreement (“CBA”), memorialized in a

letter agreement signed by both parties on April 15, 2010 (“April Letter Agreement”).

Complaint, Ex. 1.

3. The Agreement provides, inter alia, for an increase in the number of arbitrators

from 20 to 39, while giving the parties the right to discuss that number if either party believes it

is too high or too low. It also provided for a mediation program designed to resolve cases

quickly so they would not have to be scheduled for hearings in front of arbitrators.

4. In the year following the Agreement, both parties were able to agree to, and seat,

39 arbitrators.

5. During that first year the mediation program also proved to be very successful,

resulting in some 46% of all cases submitted to mediation settling, without need to resort to a

hearing. Of the cases involving alleged misconduct (“ATU” cases) submitted to mediation, 43%

were settled. Of the competency cases submitted (“TPU” cases), 56% were settled. Indeed,

even without a formal mediation process, during the 2009-10, 2010-11 and 2011-12 school

years, settlements ranged from 63% to 75% of all cases heard that year. The vast majority of

cases either settled or resulted in some form of punishment besides termination.

6. After that first year, however, unanticipated problems developed. It became

apparent that the State Education Department (“SED”), responsible for providing compensation

to the arbitrators, had continually failed to pay the arbitrators on time and in some cases not at

all. This caused a number of arbitrators to quit the panel and others to decline invitations to join

3

the panel. In 2012, the accumulation of back pay was so great, that 10 of the 24 then-seated

arbitrators quit and a group of 33 arbitrators sued SED for $5.1 million in back pay. See Melissa

Russo and Tom Burke, I-Team: Arbitrators for Teacher Misconduct Cases Are Quitting;

available at: http://www.nbcnewyork.com/investigations/I-Team-Arbitrators-For-Teacher-

Misconduct-Cases-Are-Quitting-157386515.html (accessed October 16, 2013). Thus, while the

parties were able to seat 39 arbitrators the first year, they have had difficulty in the subsequent

years. Exacerbating the issue, despite the program’s initial success, the BOE declined to

continue the mediation program after the first year, thus adding to the arbitration case load.

Arbitrator Selection For the 2013-14 School Year

7. On June 27, 2013, I contacted Naeemah Lamont, Director of the Teacher

Performance Unit of the BOE and Laura Hemans Brantley, Director of the Administrative Trials

Unit of the BOE, suggesting that the parties begin discussion regarding the 2013-2014 panel of

arbitrators as early as possible. See Email from Claude Hersh, dated June 27, 2013, annexed as

Exhibit 1. Both parties participated in a conference call on July 8, 2013. Prior to that call, I

suggested in an email that both parties agree to not drop any arbitrators from the panel:


See Email from Claude Hersh, dated July 1, 2013, annexed as Exhibit 2.

8. Nevertheless, on the July 8 call, the BOE advised that the BOE would be

dropping three arbitrators. To balance the panel, the UFT also determined to discontinue three

arbitrators, which, along with one resignation combined to reduce the total number of arbitrators

to 13.

4

9. Despite precipitating a substantial drop in the number of arbitrators, the BOE

claimed on July 8 that it was anxious to get to a full complement of arbitrators. The UFT and

NYSUT shared the goal of selecting an appropriate number of acceptable arbitrators. During the

conference call, both parties agreed to propose 10-15 arbitrators.

10. On July 23, 2013 I sent a list to the BOE on behalf of the UFT and received a list

from the BOE of proposed arbitrators. See Email from Claude Hersh, dated July 23, 2013,

annexed as Exhibit 3; Email from Naeemah Lamont, dated July 23, 2013, annexed as Exhibit 4.

11. A follow-up call occurred the next day, during which the BOE approved of draft

invitation letters which I had previously offered to prepare, but was awaiting certain information

from the BOE. The parties also discussed the reassignment of cases and approval of arbitrators.

12. On July 29 2013, each party agreed to six of the arbitrators proposed by the other

party. See Email from Claude Hersh, dated July 29, 2013, annexed as Exhibit 5; Email from

Laura Brantley, dated July 29, 2013, annexed as Exhibit 6. Additionally, two arbitrators were on

both lists, for a total of 14 newly agreed to arbitrators. Thus, contrary to the BOE’s implication,

the selection process has been proceeding apace.

13. On August 1, 2013, the BOE finally provided the needed information to finalize

the invitation letters. I worked to complete the letters and sent them out on August 15, 2013.

All-in-all, some 27 arbitrators (13 existing and 14 newly selected) received invitation letters.

Copies of the invitation letters are annexed as Exhibit 7.

14. As of August 29, 2013, four BOE-nominated arbitrators declined, two UFT-

nominated arbitrators declined, one arbitrator nominated by both parties declined, as well as one

existing arbitrator, bringing the total number of potential arbitrators to 19. Had the BOE agreed

to mutually forgo dropping existing arbitrators, that number could have been 25.

5

15. The parties thereupon moved to continue the process, holding another conference

call on August 29, 2013 and, again, both sides agreed to submit new lists of arbitrators.

16. On September 6, 2013, on behalf of the UFT, I exchanged a list of 10 proposed

arbitrators with the BOE. See Email from Claude Hersh, dated September 6, 2013, annexed as

Exhibit 8; Email from Naeemah Lamont, dated September 6, 2013, annexed as Exhibit 9.

17. On September 16, 2013, I, together with UFT representatives, met with BOE

representatives to discuss how many arbitrators were needed in light of the parties’ experience

with how many cases typically settled in the early stages. The BOE indicated it would agree to

30 arbitrators. Given the significant rate at which cases settled, the UFT proposed that 24

arbitrators would be sufficient, together with a mediation program similar to the one adopted in

2010 and temporarily reinstituted during Summer 2013.

18. At no time did either the UFT or I state that the UFT declined to continue the


lower number could not be reached. Nor did the BOE provide at that time, or since, a response

to the lists of proposed arbitrators exchanged on September 6, 2013.

19. Instead, some three days later, the BOE sent a letter accusing the UFT of

unspecified delay, demanding that the UFT agree by the next day to select 30 arbitrators within

the subsequent 14 days. See September 19, 2013 BOE letter, Complaint, Ex 2. Despite the

many months of progress made by the parties, the BOE threatened immediate legal action

against the UFT if it did not consent within the unreasonable and arbitrary one-day timeframe.

The letter inexplicably held the UFT entirely responsible for there not being more arbitrators

who accepted positions. The BOE made no reference to the fact that many of the arbitrators that

had been proposed so far had declined the invitation. Nor did the letter discuss the BOE’s own

6

decision to drop arbitrators at the beginning of the discussion process. Nor did the BOE’s letter

address the fact that the UFT currently had an outstanding list of proposed arbitrators awaiting

the BOE’s response. And the BOE’s letter made no mention of the successful mediation

program that it had recently discontinued (and which it knew was subject to an ongoing

collective bargaining fact finding process under the auspices of the Public Employment Relations

Board).

20. In that same letter, Plaintiff claimed that the difficulty in selecting arbitrators was

entirely due to the UFT attempting to discuss with the BOE that fewer arbitrators would be

appropriate:


September 19, 2013 Letter, Complaint, Ex. 2.

21. In fact, no modification is necessary, as the April Letter Agreement explicitly

provides that the parties should meet to discuss whether more or fewer arbitrators would be

appropriate. Thus, the BOE’s threats were based on nothing more than the UFT exercising its

right under the April Letter Agreement to engage in such discussions.

22. The letter contained the following ultimatum:


7


23. The BOE provided no justification for either the September 20 date or the

October 4 date. Furthermore, the BOE provided no explanation for how, in light of the

difficulties the parties had faced thus far in agreeing to arbitrator candidates and in getting those

candidates to accept invitations, the UFT could possibly comply with this demand.

24. The following day, on September 20th, the UFT answered the BOE, but the BOE

offered no further response to that letter or the then two-weeks outstanding list of proposed

arbitrators. See September 20, 2013 UFT letter, Complaint, Ex 3. Rather, on the next business

day, September 23, 2013, the BOE wrote directly to the AAA attempting to unilaterally activate

the contractual impasse resolution process provided in the CBA without the parties having

actually reached an impasse as to the selection of arbitrators. See September 23, 2013 BOE

Letter, Complaint, Ex. 4. (Indeed, contrary to the conclusion drawn by the BOE, with 19

arbitrators selected and 20 outstanding proposals, the parties could have, if the arbitrators

accepted, achieved the BOE’s goal of 30 arbitrators rather than engage in litigation). Similar to

the BOE’s September 19 letter, this letter provided no background as to the parties’ progress in

selecting arbitrators and difficulties in obtaining acceptances from those they invited. Instead, it

merely stated that the parties had been unable to agree thus far.

25. Again, the following day, the UFT responded by letter dated September 24, 2013.

See September 24, 2013 UFT Letter, Complaint, Ex. 5. The UFT informed the AAA that as the

parties continue to discuss the selection of arbitrators, the provision cited by the BOE –

applicable to instances where the parties “cannot agree” – had not been triggered. The UFT

requested that the AAA refrain from becoming involved until it was actually appropriate for it to

do so under the CBA.

8

26. The BOE wrote again to the AAA on September 25, 2013, admitting that the

parties had been agreeing on arbitrators and inviting them to join their panel, but attempting to

somehow blame the UFT for the low acceptance rate. See September 25, 2013 BOE Letter,

Complaint, Ex. 6. Moreover, having identified an important reason for the inability to employ a

full complement of arbitrators, the BOE failed to indicate how the parties would fare any better

in an AAA process, where the arbitrators are similarly free to decline the invitation. Likewise,

the BOE acknowledged that there were outstanding lists of arbitrators, but for the first time

blamed the UFT for not being prepared to proceed. Yet, the BOE had itself not responded to the

UFT’s list. The letter went on to insist that the AAA commence the selection process over the

UFT’s objection.

27. Recognizing that it would be inappropriate to intervene without the support of

both parties, the AAA rejected the BOE’s request to intervene on September 26, 2013. On the

same day, the BOE commenced this action. The following day, the BOE requested a mandatory

injunction seeking to compel UFT participation in the AAA process despite the BOE still not

having responded to the UFT’s September 6 list of proposed arbitrators.

28. Despite the fact that the BOE has, apparently abandoned negotiation in favor of

litigation, the UFT remains willing to continue discussions over potential arbitrators. Indeed, to

make that clear, on October 15, 2013, the UFT issued a letter to Plaintiff confirming that it

remains ready to provide the names of agreeable arbitrators from the BOE’s list, and asking

whether the BOE is prepared to do the same. See October 15, 2013 UFT Letter, annexed as

Exhibit 10.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------- x BOARD OF EDUCATION OF THE CITY : SCHOOL DISTRICT OF THE CITY OF NEW : YORK, : :

Plaintiff : Index No. 451734/2013 : (IAS Part 62 : Wright, J.)

-against- :

: UNITED FEDERATION OF TEACHERS, : :

Defendant. : --------------------------------------------------------------------- x

DEFENDANT UNITED FEDERATION OF TEACHERS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO STAY LITIGATION PENDING ARBITRATION




i

TABLE OF CONTENTS

PageTABLE OF AUTHORITIES .......................................................................................................... ii


STATEMENT OF FACTS ..............................................................................................................3

ARGUMENT ...................................................................................................................................9

POINT I THE BOE’S BREACH OF CONTRACT CLAIM FAILS AS A MATTER OF LAW .....................................................................................9

A. The UFT Has Not Refused To Agree To Arbitrators ................................10

B. The UFT Has Not Refused To Submit To AAA Arbitration.....................12

POINT II ALTERNATIVELY, THIS ACTION SHOULDBE STAYED PENDING RELATED ARBITRATION ...................................................14

A. The April Side Letter Is Covered By Article 22(C) of The Collective Bargaining Agreement ..............................................................14

B. The Matters At Issue In The Instant Proceeding Are Within The Scope Of The Arbitration Agreement ........................................................19

C. The UFT Has Complied With The Agreement To Arbitrate .....................20

D. The Claims Included In The UFT’s Grievance Are Not Time Barred .........................................................................................................20

CONCLUSION ..............................................................................................................................21

ii


Page(s) CASES

Application of Wells Fargo Armored Serv. Corp., 97 A.D.2d 75 (1st Dep’t 1983) ................................................................................................20

Cohoes City Sch. Dist. v. Cohoes Teachers Association, 40 N.Y.2d 774 (1976) ..............................................................................................................17

Consedine v. Portville Central Sch. Dist., 12 N.Y.3d 286 (2009) ........................................................................................................17, 18

Harris v Seward Park Hous. Corp., 79 A.D.3d 425 (1st Dep’t 2010) ................................................................................................9

IDT Corp. v Tyco Group, 13 N.Y.3d 209 (2009) ..............................................................................................................11

IDT Corp. v Tyco Group, S.A.R.L., 104 A.D.3d 170 (1st Dep’t 2012) ............................................................................................11

La Potin v Julius Lang Co., 30 A.D.2d 527 (1st Dep’t 1968) ................................................................................................9

Leon v Martinez, 84 N.Y.2d 83 (1994) ..................................................................................................................9

Matter of Depew Police Benevolent Assoc., Inc., 25 PERB ¶ 3009 (1992) ...........................................................................................................18

Morris v 702 E. Fifth St. HDFC, 46 A.D.3d 478 (1st Dep’t 2007) ................................................................................................9

New York State Housing Finance Agency Employees’ Ass’n v. New York State Housing Finance Agency, 183 A.D.2d 435 (1st Dep’t 1992) ............................................................................................20

Rockland County v. Primiano Const. Co., Inc., 51 N.Y.2d 1 (1980) ..................................................................................................................14

UFT v. BOE, Case No. 13 390 01257 91, AAA Opinion ..............................................................................15

UFT v. Department of Education, Case No. 13 390 1318-11, AAA Opinion ................................................................................15

iii

UFT v. Department of Education of the City of New York, Case No. 13-39000968-09, UFT Case No. C16976 ................................................................15

STATUTES

CPLR 213(2) ..................................................................................................................................21

CPLR 3211(a)(7) .............................................................................................................................9

CPLR 7502(b) ..........................................................................................................................20, 21

CPLR 7502(c) ................................................................................................................................20

CPLR 7503.....................................................................................................................................14

CPLR 7503(a) ....................................................................................................................14, 20, 21

Educ. Law §3020 ...........................................................................................................3, 16, 17, 18

Educ. Law §3020-a ..............................................................................................................3, 16, 17

Educ. Law §3020-a(1)-(2) ...............................................................................................................3

Educ. Law §3020-a(3)(b)(i) .............................................................................................................3

Educ. Law §3020(4) .........................................................................................................................3

OTHER AUTHORITIES

Brief of Petition Board of Education of the City School District of The City of New York, Matter of Board of Educ., 46 PERB 4563 (2013) ..............................................................................................................17

Melissa Russo and Tom Burke, I-Team: Arbitrators for Teacher Misconduct Cases Are Quitting; available at: http://www.nbcnewyork.com/investigations/I-Team-Arbitrators-For-Teacher-Misconduct-Cases-Are-Quitting-157386515.html. ...........................5


By the instant Complaint, the Board of Education of the City School District of the City

of New York (the “BOE), seeks to circumvent the parties’ agreed-upon approach to selecting

arbitrators to hear disciplinary matters brought against United Federation of Teachers’ members.

To avoid discussions with the UFT, the purpose of which are to mutually select a panel of

arbitrators who would be knowledgeable in both labor and school matters, the BOE has

concocted a purported “breach” by the UFT and asks this Court to order the parties to utilize a

third party (the American Arbitration Association) to assign arbitrators. This manufactured

alleged failing of the teacher disciplinary process is designed by the BOE and the Chancellor

(appointed by the Mayor) to generate political waves, rather than work with the UFT to ensure a

properly functioning process. Indeed, the existence of such alleged breach is belied by the very

facts contained in the Complaint and supporting affidavits. Accordingly, the Complaint should

be dismissed or, at the least, stayed, pending arbitration.

The BOE and UFT are parties to a letter agreement dated April 15, 2010 (the “Side

Letter”), modifying the parties’ existing collective bargaining agreement (“CBA”) to increase the

number of arbitrators (also sometimes referred to as hearing officers) designated to hear

disciplinary charges preferred against teachers and other tenured pedagogues. The Side Letter

requires that the parties agree on the arbitrators. The BOE takes the position that if there are not

39 agreed-to arbitrators who accept positions at the very start of the school year, the UFT

necessarily breached the Side Letter. That is neither the fact nor the law. Agreements to agree,

such as the one at issue here, require good faith efforts on both sides. Such agreements cannot

measure breach purely by whether or not the goal has yet been realized, here a full complement

of arbitrators. Rather, the inquiry is whether efforts are being made by each side to move

towards consensus. This is particularly true where, as here, the process also depends upon the

2

consent of third parties, the arbitrators, who are free to decline invitations to join the panel.

Contrary to the BOE’s implication, the UFT has and continues to engage in the selection process

in good faith. Indeed, in the couple months leading up to the BOE’s commencement of this

action, the parties were able to agree on 14 new arbitrators that were invited to join the panel.

More recently, the parties have agreed on and invited an additional 17 arbitrators to join the

panel and confirmed its commitment to continue that process. Thus, the UFT has not breached

its agreement to agree.

Likewise, the Side Letter does not mandate that the parties submit to the AAA process at

the whim of any one party. To be clear, the UFT does not contest that AAA process is the

ultimate mechanism for an inability to agree on a full panel complement (recognizing the parties

have a right to discuss the appropriateness of that number). Rather, the UFT contests whether

the current situation calls for that final result. Indeed, the UFT maintains that resort to AAA

arbitration is, at this time, premature for the parties are engaged in discussions per the Side Letter

and making progress towards the desired end. Accordingly, the facts alleged fail to support a

claim for breach of contract.

However, even if a breach were plead, this proceeding is not the proper forum in which

the claim should be adjudicated. The matter at issue—namely, the enforcement of a provision of

the collective bargaining agreement between the parties that has been modified by the Side

Letter—fall squarely within the arbitration provision of the governing collective bargaining

agreement. In this regard, the UFT has filed a contractual grievance on the very facts at issue in

this litigation. Because the arbitration provision of the collective bargaining agreement covers

the matters at issue, and the grievance process has been commenced, this Court should issue an

order staying the action pending the outcome of that grievance and arbitration process. Similar

3

grievance and arbitration provisions are quintessential components of both collective bargaining

agreements and labor relations in general. The parties have well-established machinery in place

on both sides that routinely addresses issues involving the interpretation of the CBA and related

side letters through this process. The suggestion by the BOE at argument on October 17, 2013,

that this one particular portion of the CBA should be excluded from the scope of the arbitration

clause finds no support either in the language of the CBA, Side Letter or the cases cited, which

simply require that waiver of a statutory right by the BOE be clear and explicit. There is no

statutory right to not arbitrate the interpretation of the Side Letter. To the contrary, the statute

explicitly makes virtually all procedural aspects of the disciplinary process – including selection

of hearing officers – subject to collective bargaining agreements, and thus, necessarily, the

arbitration clauses almost universally contained therein.

STATEMENT OF FACTS

Pursuant to State Education Law, tenured pedagogues have certain due process rights.

See generally, Educ. Law §§3020 and 3020-a. These rights include the preferring of charges and

a hearing before an impartial hearing officer to determine whether there exists just cause for

discipline. Educ. Law §3020-a(1)-(2). The State Education Department (“SED”), pursuant to

statute, pays the hearing officers out of State appropriations. Educ. Law §3020-a(3)(b)(i). Also

pursuant to Education Law §3020(4), the parties may collectively bargain and, within certain

restrictions, agree to a modification of the statutory process. There is no dispute between the

parties that selection of arbitrators, the number of arbitrators or the use of a standing panel of

arbitrators fall within the scope of permitted modifications. That is precisely what the parties

have accomplished. Article 21(G) of the CBA between the UFT and the BOE covering teachers

(and corresponding portions of other CBAs), sets forth a modified Educ. Law §3020-a process.

Among the modifications collectively bargained was the creation of a standing rotational panel

4

of arbitrators, agreed to by both parties, that would hear disciplinary charges. The 2007-2009

CBA provided for 20 arbitrators.

The Side Letter

In an effort to facilitate the disciplinary hearing process, the parties entered into the April

Side Letter, which, inter alia, amended Article 21(G), increasing the number of arbitrators to 39.

(See Side Letter, Exhibit 1 to the Complaint. A copy of the Complaint with exhibits is annexed

to the accompanying Affirmation for Alan M. Klinger, dated October 29, 2013 (“Klinger Aff.”),

as Exhibit 1.) The Agreement also provided a mediation program designed to resolve cases more

expeditiously so they would not require hearings before arbitrators. (Id.) In the year following

the agreement, both parties were able to agree to, and seat, 39 arbitrators. (Complaint ¶ 11.)

Additionally, during that first year, the mediation program proved successful at settling a number

of cases without a hearing. (Complaint, Ex. 3.)

While setting 39 arbitrators as a target, the April Side Letter also recognized that

adjustments may be necessary, explicitly providing

Representatives of the UFT and DOE shall meet monthly, or less frequently if the UFT and DOE agree, for the first year of this Agreement and at least twice a year thereafter (i) to agree on the number of hearing officers hearing expedited cases, (ii) to discuss the appropriateness of the number of hearing officers, including the possibility of agreeing to increase or decrease the number of hearing officers on either the incompetence or misconduct panels on either a temporary or permanent basis, and (iii) to discuss the appropriateness of the number of probable cause arbitrators, including the possibility of agreeing to increase or decrease the number of probable cause arbitrators. If the DOE believes there is a need for more hearing officers to comply with the timeliness set forth in this Agreement, it shall request that the UFT agree to increase the number of hearing officers and the UFT shall not unreasonably deny an increase.

(Complaint, Ex. 1 (emphasis added).) This provision allows the parties to discuss further

changes to this number of arbitrators going forward.

5

After the first year of the Side Letter, the process for selecting arbitrators was

complicated by external factors that the BOE attempts to down-play in an effort to blame the

UFT. SED, responsible for providing compensation to the arbitrators, until recently was failing

to pay at all or on time. Indeed, in April 2012, a group of 33 arbitrators sued SED for $5.1

million in back pay, and in June 2012 10 of the 24 arbitrators empanelled by the parties for the

2011-12 school year quit due to the SED’s payment policies and delinquencies.1 In 2012-2013,

only five of the 14 arbitrators invited to join the panel accepted the offer and this year a total of

14 new arbitrators have been invited but only seven have accepted. (Complaint, Ex. 6.) Thus,

while the parties were able to seat 39 arbitrators the first year, they have been unable to do so in

the subsequent years despite continuous efforts to propose candidates, agree and send invitations.

(Complaint, ¶¶ 18-19.) Needless to say, panel positions became considerably less attractive to

potential arbitrators when it became clear compensation would be lacking, though, more

recently, this issue has been rectified by SED. Multiplying the burden, the BOE declined to

continue a successful mediation program that reduced the number of cases. (Complaint, Ex. 3.)

Arbitrator Selection For The 2013-14 School Year

Recognizing the difficulties in identifying mutually agreeable, qualified arbitrators who

would be willing to accept a role on the panel, in July 2013, the UFT and the BOE began the

process of choosing arbitrators. (Complaint, ¶ 20.) From July through early September, the

BOE and the UFT held discussions and exchanged multiple lists of arbitrators. (Complaint, Ex.

3.) In just those two months, the parties were able to agree on 14 new arbitrators to invite to the

panel.2 (Complaint, Exs. 3 and 6.) Of those 14, seven accepted the invitation, together with

1 Melissa Russo and Tom Burke, I-Team: Arbitrators for Teacher Misconduct Cases Are Quitting; available at: http://www.nbcnewyork.com/investigations/I-Team-Arbitrators-For-Teacher-Misconduct-Cases-Are-Quitting-157386515.html. 2 This belies any contention that the UFT has moved only after the filing of this suit.

6

those invited back from the prior year, bringing the total number up to 19. (Complaint ¶ 22.)3

On September 6, 2013, each party exchanged lists of 10 names, producing 20 proposed

candidates. (Complaint, Ex. 5.) Subsequent to the filing of the Complaint, and as discussed on a

conference call with the Court on Thursday, October 24, 2013, the parties have invited another

seven arbitrators from the September 6, 2013 lists and on October 22, 2013 exchanged new lists

of 10 names each. On October 28, 2013, the parties agreed to invite another 10 arbitrators.

Despite its own acknowledgement in the Complaint that lists of proposed arbitrators had

been exchanged less than two weeks beforehand, the BOE on September 19, 2013, sent a letter

accusing the UFT of unspecified delay and demanding that the UFT agree by the next day to

select 30 arbitrators within the subsequent 14 days. (Complaint, Ex. 2.) Although many months

of progress had been made by the parties, the September 19th letter threatened immediate legal

action against the UFT if it did not consent within the unreasonable and arbitrary one-day

timeframe. This letter inexplicably held the UFT solely responsible for there not being more

arbitrators who accepted positions. The BOE made no reference to the fact that many of the

arbitrators that had been proposed so far had declined the invitation. Nor did the letter address

that the UFT had at that time an outstanding list of proposed arbitrators awaiting the BOE’s

response. (Id.) The September 19th letter also made no mention of the UFT’s proposal to

continue the successful mediation program that the BOE had refused to continue. Instead, the

BOE claimed that the difficulty in selecting arbitrators was entirely due to the UFT attempting to

negotiate with the BOE for a lesser number of arbitrators:

The UFT’s actions appear motivated by a desire to force the DOE to agree to a modification of the April Letter Agreement which would reduce the total number

3 Although the Complaint indicates that as of September 19, 2013, there were only 18 arbitrators selected, the parties have agreed before this Court that there are currently 19 arbitrators empaneled for the 2013-14 school year. (Klinger Aff., ¶ 3.)

7

of arbitrators assigned to hear 3020-a cases to a number well below that in the April Letter Agreement.

(Complaint, Ex. 2.)

Contrary to the BOE’s assertions, however, no modification is necessary, because the

Side Letter explicitly provides that the parties should meet to discuss whether more or fewer

arbitrators would be appropriate. (Complaint, Ex. 1.) Thus, the BOE’s threats were based on

nothing more than the UFT exercising its right under the Side Letter to engage in such

discussions.

The September 19th letter contained the following ultimatum:


(Complaint, Ex 2.) The BOE provided no justification for either the September 20 date or the

October 4 date. Furthermore, the BOE provided no explanation for how, in light of fallout from

SED’s prior failure to pay arbitrators on time, the UFT could possibly comply with this demand

in the time-frame provided. While the payment issue has now been resolved, it takes time some

for the impact to be realized.

The following day, on September 20, 2013, the UFT answered the BOE, but the BOE

offered no response to that response or on the now two-week outstanding list of proposed

arbitrators. (See generally, Complaint.) Instead, on the next business day, September 23, 2013,

the BOE wrote directly to the AAA attempting unilaterally to activate the contractual impasse

resolution process provided in the CBA without the parties having actually reached an impasse

as to the selection of arbitrators. (Complaint, Ex. 4.) Similar to the BOE’s September 19, 2013

8

letter, this letter provided no background as to the parties’ progress in selecting arbitrators.

Instead, it merely stated that the parties had been unable to agree thus far. (Id.)

Again, the following day, the UFT responded by letter dated September 24, 2013.

(Complaint, Ex. 5.) The UFT informed the AAA that since the parties were continuing to

negotiate the selection of arbitrators, the provision cited by the BOE—applicable to instances

where the parties “cannot agree”—had not been triggered. The UFT requested that the AAA

refrain from becoming involved until appropriate for it to do so under the CBA. (Id.)

The BOE wrote again to the AAA on September 25, 2013, admitting that the parties have

been agreeing on arbitrators and inviting them to join their panel, but attempting to somehow

blame the UFT for the low acceptance rate. (Complaint, Ex. 6.) Moreover, having identified an

important reason for the inability to employ a full complement of arbitrators, the BOE failed to

indicate how that issue would be ameliorated. Indeed, the parties have been proposing and

inviting arbitrators that are on the AAA list as well. Likewise, the BOE acknowledged, for the

first time in this entire letter exchange, that there were outstanding lists of arbitrators, but blamed

the UFT for not being prepared to proceed. (Id.) The letter went on to insist that the AAA

commence the selection process over the UFT’s objection. (Id.)

Determining that it would be inappropriate to take action at this juncture, the AAA

rejected the BOE’s request to intervene on September 26, 2013. (Complaint, ¶ 42.) On the same

day, the BOE commenced this action. The following day, the BOE requested a mandatory

injunction seeking to compel UFT participation in the AAA process.

In response to the BOE’s premature invocation of AAA arbitration, the UFT filed a

grievance on October 4, 2013. (Klinger Aff., Ex. 3.) The UFT alleged that the BOE had

violated the CBA in two ways. First, the BOE had asked for AAA arbitration before the parties

9

reached a point where they could not agree to future arbitrators in violation of Article 21(G)(2)

of the CBA.4 Second, the BOE had refused to discuss any change in the number of arbitrators on

the panel, in violation of the Side Letter. That grievance is currently pending before the

Chancellor who, pursuant to the CBA, is required to issue a decision on or before Monday,

November 4. (CBA, Article 22(B)(1)(b), Klinger Aff., Ex. 4.) Presumably, the Chancellor will

not agree with the UFT that he and the BOE have violated the CBA by their actions, in which

instance the UFT intends to pursue arbitration pursuant to Article 22(C) of the CBA.

ARGUMENT

POINT I THE BOE’S BREACH OF CONTRACT CLAIM FAILS AS A MATTER OF LAW

When considering a motion to dismiss under CPLR 3211(a)(7), a court is obligated to

accept all alleged facts as true, and give the non-moving party the benefit of all possible

inferences. Leon v Martinez, 84 N.Y.2d 83, 87 (1994). However, the court is not obligated to

consider conclusory allegations. Nor does the court need to consider any allegations

contradicted by documentary evidence attached to the complaint itself. See La Potin v Julius

Lang Co., 30 A.D.2d 527, 528 (1st Dep’t 1968).

To sufficiently plead a cause of action for breach of contract, a plaintiff must allege (1) a

valid agreement between the plaintiff and defendant, (2) performance by the plaintiff, (3) breach

by the defendant, and (4) damages. See Harris v Seward Park Hous. Corp., 79 A.D.3d 425, 426

(1st Dep’t 2010); Morris v 702 E. Fifth St. HDFC, 46 A.D.3d 478, 479 (1st Dep’t 2007). Here,

the breach of contract falls short of these pleading standards. Neither party disputes that the

CBA or the Side Letter are binding on the parties. And, without conceding the merits of such

allegations, the BOE’s complaint does allege the BOE’s performance and damages. The

4 Copies of the relevant provisions of the CBA are annexed to the Klinger Aff., Ex. 4.

10

complaint, however, does not allege any actions by the UFT that could be considered a breach of

the agreement.

The BOE’s claim that the UFT has breached the CBA is based on two allegations. First,

the BOE alleges that the April Side Letter was breached by the UFT’s failure to agree to a full

panel of arbitrators. (Complaint, ¶ 49.) Second, the BOE alleges that the UFT breached by

refusing to participate in the AAA process. (Complaint, ¶ 50.) These general allegations,

however, are contradicted by factual allegations made earlier in the complaint. Looking at the

specific facts alleged by the BOE, it is clear that the Complaint does not allege any conduct by

the UFT that has breached the CBA or the Side Letter.

A. The UFT Has Not Refused To Agree To Arbitrators

The BOE first claims that the UFT has breached the CBA and the Side Letter by failing

to agree to a full panel of arbitrators. (Complaint ¶ 49.) This conclusion seems to be based on

two allegations: (i) that the parties have not yet agreed to a full complement of arbitrators, and

(ii) that the UFT did not respond to the BOE’s ultimatum contained in the BOE’s September 19,

2013 letter to the UFT. (Complaint, ¶ 18; Complaint, ¶ 31-32.) Neither allegation can sustain a

claim for breach of contract.

The applicable section of the CBA explicitly states that both sides need agree to all

arbitrators:

As discussed and agreed upon, all parties would be served better by the implementation of a permanent arbitration panel. The panel members must be agreeable to both sides, however, if the parties cannot agree to a full complement of 20 panel members, additional impartial arbitrators shall be selected by the parties in accordance with the American Arbitration Association (AAA) procedures (strike and rank method) from list(s) provided by the AAA until the desired number (20) is reached to establish such permanent panel.”

(CBA Article 21(G)(2) (emphasis added), Klinger Aff., Ex. 4.) This does not mean that each

side is forced to agree to empanel every arbitrator proposed by the other side. Indeed, the

11

purpose of a mutually selected standing panel is to identify people with relevant experience in

labor and educational issues, not merely a set of warm bodies. Rather, the agreement requires

only that each side must negotiate in good faith in attempting to agree on arbitrators. The

complaint provides no factual allegations that the UFT has done otherwise.

IDT Corp. v Tyco Group, 13 N.Y.3d 209 (2009), is instructive, finding that simple failure

to agree so far, without more, cannot be the basis of an action for breach of contract. There,

pursuant to a settlement agreement, the parties had agreed to negotiate a contract regarding the

right of use of fiber optic capacity. The parties negotiated on and off for three years before the

plaintiff brought an action for breach of contract based on the defendant’s failure to agree. The

defendant moved to dismiss the complaint. In affirming the dismissal, the Court of Appeals

stated, inter alia, that the alleged failure to agree on terms within three years was not sufficient to

state a claim for a breach of the agreement. Id. at 214. The Court affirmed the dismissal of the

plaintiff’s complaint. Id. at 215. The plaintiff was only allowed to proceed with its action once

it had amended its complaint to include the allegation that the defendant had told the plaintiff

that the defendant was disavowing the agreement and refusing to engage in further negotiations.

IDT Corp. v Tyco Group, S.A.R.L., 104 A.D.3d 170, 176 (1st Dep’t 2012). That is not the

situation here.

The BOE cannot succeed in its action for breach of contract for it does not, and cannot,

allege that the parties have reached an impasse. The Complaint does not allege that the UFT has

stated that it has refused to consider any additional arbitrators. Nor does the Complaint allege

that the UFT has refused to engage in discussions regarding the BOE’s proposed arbitrators. On

the contrary, the evidence is that such discussions are currently ongoing and, in fact, since the

commencement of this action the parties have agreed to invite another 17 arbitrators to join the

12

panel (see pg. 6-7, supra). As such, the complaint cannot sustain a cause of action for breach of

contract based on the UFT’s supposed refusal to agree to arbitrators.

Neither can the second allegation, the UFT’s failure to accept the BOE’s ultimatum sent

on September 19, 2013, form the basis for a cause of action for breach of contract. As noted

above, the October 4 deadline set by the BOE has no basis in the CBA or in the Side Letter.

Neither agreement provides any deadlines for selection of arbitrators, nor does it give either

party the power to set deadlines. Furthermore, while the UFT did not directly reference the

BOE’s ultimatum in its response letter on September 20, 2013, this cannot plausibly be read as a

refusal to agree to arbitrators or a refusal to continue discussion. In both the September 20th

response letter, and in the September 24, 2013 letter to the AAA, the UFT makes clear that it is

ready and willing to continue exchanging lists and discussing arbitrators. (Complaint, Ex. 3

(“We continue to work with your staff to find mutually agreeable arbitrators and even exchanged

proposed lists as recently as September 6th”); Complaint, Ex. 5 (“At this time, the parties have

not reached the point where we cannot agree on potential Panel members. … there is no reason

to believe that additional mutually agreeable arbitrators cannot be selected from [already

proposed], and/or subsequent lists”).) Thus the BOE’s unilateral ultimatum cannot manufacture

a breach of contract.

B. The UFT Has Not Refused to Submit to AAA Arbitration

It is further alleged in the Complaint that the UFT has breached the Side Letter by

refusing to participate in AAA arbitration. (Complaint ¶ 50.) As a threshold matter, the AAA

arbitration process is contained in the CBA, not the Side Letter. Moreover, the AAA arbitration

process only becomes appropriate “if the parties cannot agree to a full complement of [39] panel

members...” (CBA Article 21(G)(2) (as modified by the Side Letter), Klinger Aff., Ex. 4.) But,

as stated above, the BOE has not alleged that the parties “cannot agree,” only that they have not

13

yet done so. (Complaint ¶¶ 18, 43.) Thus AAA arbitration is inappropriate at this time, and

cannot be a basis for breach of contract.

Even if AAA arbitration is appropriate, the UFT has never refused to participate, and the

Complaint provides no factual allegations to the contrary. In support of its claim that the UFT

has refused to participate in AAA arbitration, the BOE offers only the UFT’s letter to the AAA

on September 24, 2013. (Complaint, ¶ 34-37, Ex. 5.) However, no such refusal is contained

within this letter. Instead, the letter merely sets out the UFT’s position that AAA arbitration is

not appropriate at this point:

At this time, the United Federation of Teachers (UFT) respectfully submits that there is no need for AAA involvement in the selection process and that Ms. Jackson-Chase’s request is in violation of the applicable collective bargaining agreements.

(Complaint, Ex. 5.) The letter further states that the CBA requires AAA arbitration only if the

parties “cannot agree” on arbitrators. It continues with the UFT’s belief that, since discussions

are ongoing, it is not the case that the parties “cannot agree.” The letter includes some additional

factual context to the BOE’s letter on September 23, 2013, and then concludes as follows:

Accordingly, on behalf of the UFT and our colleagues in NYSUT, I respectfully request that the AAA refrain from becoming involved in the contractual selection process unless and until such time as it becomes appropriate in accordance with the terms of the applicable collective bargaining agreements.

Id.

The BOE does not allege any other statement from the UFT regarding the AAA selection

process. Nor does it provide any communication from the AAA asking the UFT to participate in

its selection process, as there was none. As a result, the BOE cannot, and does not, point to any

instance of the UFT actually refusing to participate in AAA process.

14

POINT II ALTERNATIVELY, THIS ACTION SHOULD BE STAYED PENDING RELATED

ARBITRATION

As raised in prior argument before the Court, the UFT believes that, if a breach is to be

considered, this is the wrong forum and the Court should stay the action pending arbitration of

the related grievance pursuant to CPLR 7503(a). CPLR 7503(a) states:

Where there is no substantial question whether a valid agreement was made or complied with, and the claim sought to be arbitrated is not barred by limitation under subdivision (b) of section 7502, the court shall direct the parties to arbitrate.

CPLR 7503. An order to compel arbitration should be granted if (1) there is a valid agreement,

(2) the issue to be arbitrated falls within the scope of this agreement, (3) the parties have

complied with any preconditions to arbitration set forth in the agreement, and (4) the claim is not

time barred. See Rockland County v. Primiano Const. Co., Inc., 51 N.Y.2d 1, 6-8 (1980). CPLR

7503 goes on to state:

If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action. If the application is granted, the order shall operate to stay a pending or subsequent action, or so much of it as is referable to arbitration.

Id.

Here, the UFT has initiated a grievance that will result in arbitration pursuant to a valid

arbitration agreement. The claim is within the scope of the agreement, and it is not time-barred.

Furthermore, the issues involved in the arbitration are the same as the issues involved in the

instant action. Therefore, the Court should grant motion to compel arbitration and stay litigation.

A. The Side Letter Is Covered By Article 22(C) Of The Collective Bargaining Agreement

Article 22(C) of the CBA provides for the arbitration of disputes under the agreement. It

expressly states:

15

A grievance dispute which was not resolved at the level of the Chancellor under the grievance procedure may be submitted by the Union to an arbitrator for decision if it involves the application or interpretation of this Agreement.

Furthermore, the BOE concedes that the Side Letter modifies, and thus is part of, the CBA. See

Affirmation of Maxwell D. Leighton in Support of Plaintiff’s Application for a Preliminary

Injunction (“Leighton Aff.”), ¶¶ 36-37, 46-47 (Klinger Aff., Ex. 2.) There is no substantial

question that the above arbitration agreement is valid as the parties have arbitrated under this

clause untold times, concerning the interpretations of CBA language, as well as side letters and

other BOE policies covered by the CBA’s grievance and arbitration provision. See e.g., UFT v.

Department of Education of the City of New York, Case No. 13-39000968-09, UFT Case No.

C16976, AAA Consent Award (S. Buchheit, June 12, 2011) (resolving arbitration held pursuant

to the CBA regarding the BOE’s unilateral changes to the definition of corporal punishment

contained in a Chancellor’s Regulation that violated a letter agreement between the parties)

(Klinger Aff., Ex. 5); UFT v. Department of Education, Case No. 13 390 1318-11, AAA Opinion

and Award (C. Wittenberg, Dec. 9, 2011) (finding in an arbitration held pursuant to the CBA that

the BOE violated the policy contained in Department of Education Special Circular 8 regarding

para-professionals clocking in and out) (Klinger Aff., Ex. 6); UFT v. BOE, Case No. 13 390

01257 91, AAA Opinion and Award (R. Berger, Nov. 18, 1991) (finding in an arbitration held

pursuant to the CBA that the BOE violated, inter alia, Article 6B of the CBA, as modified by a

separate letter agreement between the parties) (Klinger Aff., Ex. 7.) Accordingly, the UFT and

the BOE are parties to an agreement to arbitrate any alleged violation of the CBA or the Side

Letter.

The BOE suggested to this Court during oral argument on its motion for a preliminary

injunction that the parties’ process for selecting arbitrators, including the AAA impasse process,

is somehow statutorily exempted from the broad grievance and arbitration provision contained in

16

the CBA. (Klinger Aff., ¶ 2.) This argument finds no support in either the CBA or the statute.

Indeed, not only has the BOE failed to cite to any meaningful support for this position, the BOE

argued the opposite in its application for a preliminary injunction. The BOE asserts not only that

the AAA process provided for in the CBA applies to the Side Letter—indeed, that is the entire

basis of their action—but also that the AAA process “stands in the stead of the statutory

process.” (Leighton Aff., ¶ 48.) The BOE then proceeds to cite a couple of cases for the

proposition that where the BOE waives a statutory right, such waiver must be clear and explicit.

(Leighton Aff., ¶¶ 48-49.) While the argument, as written, seems to claim that the BOE has not

waived its right to the AAA impasse process, it simultaneously admits that the statutory

arbitrator selection and impasse process is different from and has been replaced by the process

contained in Article 21G and the Side Letter. (Leighton Aff., ¶ 47.) Thus, setting aside whether

the UFT agrees with this “waiver” argument, the fact is that the CBA does contain an impasse

resolution process utilizing the AAA, albeit a different one than provided in the statute. Indeed,

it is hard to see the point of the BOE’s argument as the BOE has brought a breach of contract

claim seeking to enforce the CBA and Side Letter, not the statute.

At argument, the BOE attempted to transform this argument regarding the availability of

an impasse resolution process into an argument that such process cannot fall within the

contractual grievance and arbitration mechanism. It is hard to discern what statutory right the

BOE believes is being “waived” by operation of the grievance process. Proceeding to

contractual arbitration over whether the BOE properly invoked the AAA process does not

constitute a “waiver” of that process.

Moreover, Education Law §3020 explicitly provides that the procedures set forth in Educ.

Law §3020-a “may be modified by agreements negotiated between [the parties]” and that the

17

parties have negotiated such modifications. Indeed, the BOE acknowledges as much. (Leighton

Aff., ¶¶ 49-50.) By explicitly authorizing that labor and management may modify certain

Education Law 3020-a procedures by collective bargaining agreement, the Legislature implicitly

recognized that the enforcement of such modifications will be subject to contractual enforcement

mechanisms contained in those CBAs – typically, a grievance and arbitration process. That is

precisely what occurred here. There is no indication in statute or in the CBA that this one

provision – for the resolution of impasse in arbitrator selection – should be carved out.5 The

BOE’s cases are not to the contrary.

The BOE’s reliance on Cohoes City Sch. Dist. v. Cohoes Teachers Association, 40

N.Y.2d 774, 778 (1976), is misplaced in that the Court of Appeals there found that a board of

education could not relinquish through the collective bargaining process its authority and

responsibility to make tenure decisions. 40 N.Y.2d at 778. As set forth above, and as the BOE

has acknowledged, that is not the situation here where the ability to modify the arbitrator

selection process has been specifically authorized by statute. Education Law §3020 expressly

provides for collectively bargained modifications to the procedures set forth in Education Law

§3020-a.

Consedine v. Portville Central Sch. Dist., 12 N.Y.3d 286 (2009), is equally inapposite.

There, the Court of Appeals found that, although the board could waive its statutory right to

5 Although the BOE here argues that certain components of Education Law 3020-a may not be waived or made subject to contractual grievance and arbitration processes – specifically, the selection of arbitrators – in other proceedings involving the same parties, the BOE has argued that all of Section 3020-a may be altered through collective bargaining. In its briefing to the Public Employment Relations Board (“PERB”) in connection with ongoing contractual impasse resolution proceedings between the parties, the BOE argued that “[s]ection 3020 provides for the possibility of negotiated alternative disciplinary procedures” and that the section “expressly provides that the parties may agree to alternative procedural mechanisms through collective bargaining from those specified in Section 3020-a.” Brief of Petitioner Board of Education of the City School District of The City of New York, Matter of Board of Educ., 46 PERB 4563 (2013), excerpted as Ex. 9 to the Klinger Aff. The BOE did not assert or acknowledge any limitation to the scope of such bargaining, let alone the carve-out from the grievance and arbitration process it posits here.

18

discharge a probationary employee at any time during the three-year probationary period, it had

not in that case expressly done so. Id. at 293-94. Not only has the BOE expressly agreed to

modification of the 3020-a process and inclusion of that modification in the CBA containing the

grievance and arbitration provision, but there is no statutory right pertaining to such grievances.

The statutory right is to a certain arbitrator selection process. By the BOE’s explicit admission,

it agreed to modify that process. (Leighton Aff., ¶ 47.) In so agreeing, it made the modification

part of a CBA which contains an arbitration provision. The BOE could have, but did not,

bargain for language excluding Article 21G from the grievance process. There is no basis in

Consedine, statute or contract to exclude Article 21G or any discrete portion thereof from the

arbitration provision. That is consistent with the statutory authorization found in Education Law

3020 for the parties to modify the process by collective bargaining agreement. Indeed, the BOE

here seeks to enforce the contractual provisions, not any statutory right. The BOE asks this

Court to order the parties abide by the terms of the CBA with regard to the Side Letter and at the

same time argues that subjecting the negotiated modifications to the grievance and arbitration

procedure contained in the same agreement would somehow violate public policy. They cannot

pick and choose which parts of an agreement they wish to enforce and which to unilaterally

avoid. The Legislature clearly intended that the BOE and the UFT could modify the statutory

requirements at issue here through collective bargaining. Once collectively bargained, such

modifications are not distinct from the remainder of the CBA, but become part and parcel of the

agreement between the parties, including the applicable grievance and arbitration procedure,

which are among the “core of a bargaining agent’s statutory responsibilities and their availability

is one of the fundamental reasons employees choose to be represented by a union.” Matter of

Depew Police Benevolent Assoc., Inc., 25 PERB ¶ 3009 (1992) (Klinger Aff., Ex. 8.)

19

B. The Matters At Issue In The Instant Proceeding Are Within The Scope Of The Arbitration Agreement

The UFT’s grievance specifies two issues: First, the UFT alleges that the BOE has

violated the CBA by prematurely invoking the AAA arbitration process, contrary to Article

21(G)(2). Second, the UFT alleges that the BOE has violated the April Side Letter by refusing to

discuss the appropriate number of arbitrators needed on the panel. (Klinger Aff., Ex. 3.) Both

claims clearly fall within the scope of the arbitration agreement as they both allege violations of

the CBA on the part of the BOE.

The first claim underlying the grievance directly addresses the allegation in paragraph 50

of the Complaint, where the BOE alleges that the UFT violated the CBA by refusing to

participate in AAA arbitration. When the grievance is put in front of the arbitrator, however, the

arbitrator will necessarily need to determine whether the BOE’s invocation of the AAA process

was appropriate in order to fully arbitrate the grievance. If it is determined that the BOE

improperly asked for AAA intervention, then the UFT’s actions with regard to the AAA cannot

form the basis for a breach of contract claim. Since the arbitrator’s determination of the first

claim in the grievance would determine the viability of the BOE’s cause of action, that issue is

clearly “involved” in the instant action.

The second claim underlying the grievance will also require the arbitrator to discuss

matters that are involved in the instant action. In order for the arbitrator to determine whether

the BOE has breached the agreement by failing to discuss in good faith number of arbitrators

needed, the arbitrator will need to examine the conduct of both parties during those discussions

and determine whether or not they have been living up to their contractual obligations. The

arbitrator’s determination on this issue will directly affect the viability of the BOE’s allegation

20

that the UFT has improperly delayed the selection of arbitrators. Thus, the issues raised by the

second claim in the grievance are clearly “involved” in the instant action.

Because the matters at issue here plainly fall within the arbitration provision of the CBA

and the arbitration of the grievance would directly affect the viability of the BOE’s cause of

action, this action should be stayed pending that arbitration. If, at the conclusion of the

arbitration, there are still issues remaining, this action can be resumed at that time.

C. The UFT Has Complied With The Agreement To Arbitrate

When determining whether an agreement to arbitrate has been “complied with,” courts

look to see whether there are any preconditions set up by the parties before they may access the

arbitral forum. In the labor context, however, such questions, are matters for the arbitrator to

decide. Application of Wells Fargo Armored Serv. Corp., 97 A.D.2d 75, 77 (1st Dep’t 1983)

(citing Wiley & Sons v. Livingston, 376 U.S. 543 (1964)) (“[in] arbitrations arising out of labor-

management agreements…compliance with the grievance steps has been determined to be a

question of procedural arbitrability to be determined by the arbitrator”). It is generally

recognized in the labor context, that the filing of a grievance, as the UFT has done here, is a

necessary prelude to arbitration and all that is required to trigger protections pertaining to

arbitration. See e.g., New York State Housing Finance Agency Employees’ Ass’n v. New York

State Housing Finance Agency, 183 A.D.2d 435 (1st Dep’t 1992) (court rejected as “at odds with

the plain purpose of CPLR 7502(c)” respondent’s argument that no injunction could be sought

until the grievance procedure had been exhausted and arbitration commenced).

D. The Claims Included In The UFT’s Grievance Are Not Time Barred

For the purpose of determining whether a complaint is time-barred, CPLR 7503(a) refers

to CPLR 7502(b), which states that an arbitrable claim is time-barred if it would have been

barred by the statute of limitations if asserted in court. Here, the UFT’s grievance alleges breach

21

of contract, for which there is a six year limitations period. CPLR 213(2). The first allegation,

improper invocation of AAA arbitration, occurred on September 24, 2013. The second

allegation, refusal to negotiate as to number of arbitrators, does not have a specific date of

occurrence, but could not have occurred before the April Side Letter was signed on April 15,

2010. Thus, both claims fall within the statute of limitations, and neither is time-barred by

CPLR 7502(b).

The claims sought to be arbitrated plainly meet the conditions set out under CPLR

7503(a). As a result, the order to compel arbitration and stay the instant action should be

granted.

CONCLUSION

For the reasons set forth herein, the UFT respectfully requests that this Court issue an

order dismissing this action in its entirety and for such other and further relief as the Court deems

just and proper or, in the alternative, stay the instant action pending arbitration of the underlying

issues and issue an order compelling the BOE to arbitration pursuant to the Collective

Bargaining Agreement between the parties.

Dated: New York, New York October 29, 2013

Respectfully submitted, STROOCK & STROOCK & LAVAN LLP By: /s/ Alan M. Klinger Alan M. Klinger, Esq. Dina Kolker, Esq. Beth A. Norton, Esq. 180 Maiden Lane New York, New York 10038 Of Counsel: (212) 806-5400 R. Mac Stone Counsel for Defendant UFT

Index No. 451734113

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK

BOARD OF EDUCATION OF THE CITY SCHOOLDISTRICT OF THE CITY OF NEW YORK,

Plaintiff,

-against-

LINITED FEDERATION OF TEACHERS,

Defendant.

PLAINTIFF'S MEMORANDUM OFLAW IN OPPOSITION TO

DEFENDANT'S MOTION TO DISMISSOR, IN THE ALTERNATIVE, TO STAYLITIGATION PENDING ARBITRATION

MICHAEL A. CARDOZOCorporation Counsel of the City of New York

Attorney for Plaintiff100 Church Street, Room 2-143New York, N.Y. 10007-2601

Of Counsel:Tel:

Maxwell D. Leighton(212) 3s6-2472

Our No. 2013-045987



SUPREME COURT OF THE STATE OF NEW YORKCOI-INTY OF NEW YO

BOARD OF EDUCATION OF THE CITY SCHOOLDISTRICT OF THE CITY OF NEV/ YORK,

Plaintift

-against-

I-INITED FEDERATION OF TEACHERS,

Defendant.

Index No. 451734113LA.S. Part 62 (V/right, J.)

PLAINTIFF'S MEMORANDUM OF LAW INOPPOSITION TO DEFENDANT'S MOTIONTO DISMISS OR, IN THE ALTERNATIVE,TO STAY LITIGATION PENDINGARBITRA

Plaintiff, the Board of Education of the City School District of the City of New

York ("DOE"), has commenced this breach of contract action seeking a determination that the

defendant, the United Federation of Teachers ("UFT"), has violated a validly enforceable

agreement, a letter agreement dated April 15, 2070, between the DOE and the UFT ("April

Letter Agreement"). That agreement increased -- to 39 -- the number of arbitrators (also referred

to as "hearing officers") who sit on a rotational panel, from which arbitrators are drawn to

preside over disciplinary hearings held as a result of disciplinary charges brought by DOE

against nonsupervisory pedagogical personnel pursuant to New York Education Law Section

3020-a. Furthermore, under the parties' collective bargaining agreement ("CBA"), any inability

to agree to a full complement of 39 arbitrators shall trigger an alternative arbitrator selection

process held under the auspices of the American Arbitration Association ("AAA"). As set forth

in plaintiffs complaint, and in its pending motion seeking injunctive relief, the UFT has

continually failed to agree to a full panel of 39 arbitrators as mandated under the agreement and,

further, upon DOE's invocation of the AAA selection process, has refused to participate in that

alternative procedure. The UFT's failure has been typified by repeated delay, over the years, and

throughout the selection process, including, and immediately up to, the parties' appearance

before this Court, on October 17,2013, on plaintifls motion for injunctive relief.

The defendant has now moved to dismiss this action or, in the alternative, to stay

litigation pending arbitration. This tactic is yet another attempt to delay the selection process, by

jettisoning this Court's oversight, and landing the dispute in a slow slide of arbitration, Indeed,

the UFT admits in its Octob er 29rh moving papers, candidly, that since October lTth -- the date of

the Court's intervention -- the selection process has markedly accelerated, with the parties

agreeing to invite seventeen arbitrators, nearly doubling, in twelve days, the number previously

agreed to, at a glacial pace, in the three-and-a-half months that followed the conclusion of the

last school year. This sheer fact bespeaks the breach better than anything else. While the UFT

seeks to elide its obligation and excuse its breach, relying on a case concerning the condition

precedents that can reside within a contract, it ignores the fundamental principle that, under New

York law, all contracts imply a covenant of good faith and fair dealing in the course of

performance. It is the UFT's conduct of continual delay -- until the Court interceded -- that

impelled the DOE to commence this action, and seek immediate relief from the Court.

As the BOE has aheady emphasized to this Court, the April Letter Agreement,

and the requirement that the rotational panel have 39 arbitrators, is not some aspirational goal,

but rather is a practical need, given the disciplinary case backlog, which is excessive and

damaging to the interests of the DOE and, presumably, of the UFT, Accordingly, and for the

reasons set forth herein, defendant's motion should be denied.

2

STATEMENT OF F'ACTS

The Court is respectfully refened to the complaint filed in this action, fot a

statement of material and pertinent facts.

ARGUMENT

POINT I

DEFENDANT'S MOTION TO DISMISSSHO

Defendant does not dispute that the complaint sufficiently sets forth (1) a valid

agreement, (2) the DOE's performance, and (3) the DOE's damages, but asserts that the

complaint does not allege actions by the UFT that could be considered a breach of any

agreement. To the contrary, it does.

A. April Letter Agreement

Under the April Letter Agreement, the DOE and the UFT agreed that the number

of arbitrators on the rotational panel would be increased to a total of 39. See April Letter

Agreement, Ex. "1 i' at 6.1 However, other than for the 2010-2011 school year, which

immediately followed the April Letter Agreement, the rotational panel has not, to date, had a full

complement of 39 arbitrators, See Complaint, atn'39." The failure to have a full complement

of arbitrators has caused an enorrnous backlog of disciplinary cases and impeded the DOE's

ability to comply with the procedural and timing mandates for adjudicating such cases under

Education Law $ 302-a, Id.

Rather than proceeding expeditiously as it has now, only upon the

commencement of this lawsuit -- the UFT delayed the selection process, The parties exchanged

I Unless otherwise indicated, all referenced exhibits are annexed to the complaint

J

arbitrator lists in early-September, but the UFT did not respond as to when it would be ready to

move forward with the selection process until after this action was filed.2

"Under New York law, all contracts imply a covenant of good faith and fair

dealing in the course of performance encompass[ing] any promises which a reasonable

person in the position of the promise would be justified in understanding were included." Mt'

Qinoi LI v 'l'hp'IOOQ ^levqnÁ

W o#a¡ À nntrifr¡ 'l-nrcf 2013 N,Y Sip Op, 5667 (1st Dep't

2013). Defendant has violated that covenant, as pleaded in the complaint, by delaying -- without

warrant -- the selection process. The UFT attempts to excuse this conduct, claiming no breach,

in various ways, none of which should be accepted by the Court.

First, the UFT frames the contractual obligations under the April Letter

Agreement under the requirement of mutual agreement of all arbitrators. Presented thus, the

UFT contends that it cannot have breached the April Letter Agreement, as the contract merely

requires agreement, and that, as a condition precedent to obtaining 39 arbitrators, the failure to

agree cannot constitute a breach. To that end, defendant relies solely on IDT Corp. v. Tyco

Group, 13 N.Y.3d 209 (2009), which held that, in the context of a settlement agreement, the

parties' failure to agree on terms, while negotiating a service contract, over the course of three

years, was insufficient to state a claim of a breached settlement agreement. Under this

formulation, the UFT posits that attaining the mandated 39 arbitrators is first subject to a

condition mutual agreement - and no contractual breach can flow from the UFT's

unreasonable delay in selecting arbitrators from the DOE's list. Indeed, and reasoning under

IDT Corp., the UFT asserts that the only event suffrcing to cause breach would be a statement of

2 Indeed, the UFT did not address the selection for the early-September list exchange until weeks

later, on October l5th, two days before the parties were to upp.át before the Court,

4

outright refusal to participate in the selection process. That is, the UFT could delay, as it has

here, for weeks -- and perhaps interminably -- but only if it asserted a refusal to participate at all

could the contract be deemed breached. Such a situation cannot be harmonized with the

principles of good faith and fair dealing inherent in every contract. Indeed, such conduct has

been rejected by the Court of Appeals'. o'a party to a contract cannot rely on the failure of another

to perform a condition precedent where he has frustrated or prevented the occurrence of the

condition." ADC Orange. Inc. v. Coyote Acres. Inc., 7 N.Y.3d 484,490 (2006). Indeed, "every

contract implies that neither party will do anything to prevent performance by the other party,

and a party who violates this rule, which is founded in fair dealing, may not rely on such failure

to excuse his own nonperformance." Bass v. Sevits,78 A.D.2d926,927 (3d Dep't 1980).

Not only does the UFT's suggestion, that they can delay indefinitely without

breaching the contract as long as they do not outright "refuse" to participate, offend guiding

contract principles, it violates the very stated reason that the April Letter Agreement was formed:

The long delays that have arisen in the currentprocess of investigating alleged acts of misconductand adjudicating charges pursuant to Education Law

$ 3020-a benefit neither the DOE nor the employeesrepresented by the UFT. The DOE and the UFT are

committed to ensuring that the agreements reachedhere will be carried out so that those delays will be

ended and the process outlined in the law, thecontracts between the parties, and this Agreementwill be adhered to.

April Letter Agreement, Ex. "7," at 7.

The UFT also appears to rely on the April Letter Agreement's language

concerning adjustments to the number of arbitrators on the panel, citing the applicable provision:

Representatives of the UFT and DOE shall meetmonthly, or less frequently if the UFT and DOEagree, for the first year of this Agreement and at

least twice a year thereafter (i) to agree on the

5

number of hearing officers hearing expedited cases,(ii) to discuss the appropriateness of the number ofhearing officers, including the possibility ofagreeing to increase or decrease the number ofhearing officers on either the incompetence ormisconduct panels on either a temporary orpermanent basis, and (iii) to discuss theappropriateness of the number of probable cause

arbitrators, including the possibility of agreeing toincrease or decrease the number of probable causearbitrators. If the DOE believes there is a need formore hearing officers to comply with the timelinesset forth in this Agreement, it shall request that theUFT agree to increase the number of hearingofficers and the UFT shall not unreasonably deny anincrease.

April Letter Agreement, Ex. "1," aÍ" 7. The DOE certainly does not dispute the existence of this

provision, but notes that the UFT has grossly amplified the import of its language. In the

provision, the parties have agreed to discuss increasing or decreasing the number of arbitrators

on the rotational panel. V/ithout agreement to the contrary, however, the number of arbitrators is

set at 39 and both parties must comply with this agreed-upon number. Nothing in this language

can countenance a delay to the exchange of arbitrator lists and selection from that list. Yet that is

precisely what the UFT sought to do, preceding and precipitating this action. As alleged in the

complaint, by letter, dated September 19, 2013, Dennis M. V/alcott, Chancellor of DOE

("Chancellor Walcott"), wrote to Michael Mulgrew, President of the UFT, with respect to the

number of arbitrators who will hear disciplinary cases under Education Law $ 3020-a for the

2013-2014 school year. See September 19,2013,letter, F;x. "2."

Therein, Chancellor V/alcott advised that, under the April Letter Agreement, the

"parties agreed to create two panels of a total of 39 arbitrators to hear 3020-a cases (25 for

misconducf and 14 for incompetence)," and noted that "[t]o date, only 18 arbitrators have been

6

appointed to the 3020-a panels, far below what was agreed to by the parties," September 19,

2013,letter, 8x."2," at 1 (emphasis supplied).

Chancellor Walcott further advised that

the delays caused by the UFT and [New York State

United Teachers] for this school year, as well as inprior years, undermine the intent of the April 2010Letter Agreement, and have caused a backlog todevelop and continue to grow. The current backlogof hearings needing assignment to an arbitrator farexceeds the number of cases that could be heard in aschool year by l8 arbitrators. The arbitratorsassigned to hear misconduct cases already have

several cases assigned to them. Additional cases

are being prepared to be charged or have been

charged and will need to be assigned to arbitrators,further increasing their caseloads. Likewise, the

arbitrators handling incompetence cases alreadyhave cases assigned to them. Adding additionalcases to the arbitrators' calendars directly impactsthe ability to resolve cases in accordance with thetimelines in the collective bargaining agreement, itsamendments and the Education Law.

September 19,2013,letter, F'x. "2," at I

As the complaint notes, and as DOE has made clear to the Court, the reduction

and future prevention of a disciplinary case backlog, as well as compliance with statutorily

mandated timeframes, were express justifications for the DOE and the UFT to increase the

arbitrator panel from 20 arbitrators, fixed under Article 21(G) of the parties' CBA, to 39

arbitrators, as provided under the April Letter Agreement.

In the September 19,2013 letter, Chancellor V/alcott further observed that the

UFT's actions appear motivated by a desire to forcethe DOE to agree to a modification of the AprilLetter Agreement which would reduce the totalnumber of arbitrators assigned to hear 3020-a cases

to a number well below that in the April LetterAgreement. The reduction in the number ofarbitrators sought by the UFT would result in a

7

panel that is entirely inadequate to address the

existing backlog of 3020-a cases and will ensure

that there will be a backlog of 3020-a cases going

forward.

September 19,2073, letter, F;x. "2," at 7-2'

In response, the UFT essentially confirmed that observation, asserting that "it

seems the DOE is singularly focused on the number of arbitrators to the exclusion of all else, in

an apparent effort to justify the swelled number of lawyers on the central DOE budget, even

going to far as to cancel a mediation process that has been very effective." September 20,2013,

letter, Ex. "3," at l. The "singular focus," however, derives only from the explicit language in

the April Letter Agreement, which unambiguously increased the rotational panel to 39

arbitrators. Moreover, the mediation program referred to by the UFT is nothing but a red

herring, as the program existed as a way to eliminate the then-existing disciplinary case backlog:

This section "Mediation of Education Law $ 3020-acharges," shall apply to all employees with pending

Education Law $ 3020-a charges on or beforeSeptember l, 2010 or being investigated on orbefore September 1, 2010 and the investigationresults in $ 3020-a charges.

April Letter Agreement, Ex. "1," at7, By the plain terms of the agreement, the parties agreed

that, moving forward, future backlog would be prevented with the appointment of 39 arbitrators,

not with a mediation program.

Indeed, not only does the April Letter Agreement provide for non-binding

discussion between the parties as to the number of arbitrators on the rotational panel, to the

degree that the number need be modified, the agreement explicitly favors an increase, not a

decrease: "If the DOE believes there is a need for more hearing offlicers to comply with the

timelines set forth in this Agreement, it shall request that the UFT agree to increase the number

8

of hearing off,rcers and the UFT shall not unreasonably deny an increase." April Letter

Agreement, Ex. "l i' at7. No mirroring language exists in the agreement conceming a decrease,

Defendant asserts that, so long as it has not stated a refusal to participate, it has

satisfied the obligations of the April Letter Agreement. Yet the UFT's'most recent conduct --

leading to the selection of seventeen arbitrators -- in the mere twelve days that elapsed between

the October 77rh appearance before the Court, and the October 29th date of the UFT's motion

papers, when contrasted with the UFT's delay in the arbitrator selection process in the weeks and

months that preceded, makes clear its breach, and the basis for denying its motion.

B. Article 2l(G)(2) of the Parties' Collective Bargaining Agreement

Under Article 2l(G)(2) of the CBA, in the event that the DOE and UFT cannot

agree to a full complement of arbitrators on the arbitration panel, "additional impartial arbitrators

shall be selected by the parties in accordance with the American Arbitration Association (AAA)

procedures (strike and rank method) from list(s) provided by the AAA until the desired number .

, , is reached to establish such permanent panel," Given the UFT's statement, that it believed

mediation and a smaller arbitration panel should be agreed to, and the UFT's delay -- including a

lack of response -- to scheduling selection from the arbitrator lists that had been exchanged in

early-September, in late-September the DOE sought to implement the AAA alternative selection

process.

In asserting lack of breach, the UFT essentially parrots the same argument made

as to arbitrator selection -- that the process is catalyzed only when the parties cannot agree, and

that, no matter what the delay, the inability to agree has yet to happen. Thus, the UFT contends

that the AAA process would be triggered only when the UFT has stated, unequivocally, that it

will not participate in the selection process, and would not give rise even where its delay works

to frustrate the ability of the parties to agree. Likewise, the UFT asserts that it did not breach the

9

alternative selection provision, because it merely advised the AAA that the process was not now

"appropriate," and that the UFT has never advised that it rejected, outright, the AAA

involvement at any time. V/ith such wily semantics, the UFT would arrogate to itself the power

to delay the selection process -- preventing a full 39-arbitrator panel3 -- and, moreover, to

prevent any remedy to the DOE for that delay. As noted above, that outcome cannot be

reconciled with the stated intent of the April Letter Agreement, committing the parties to

"ensuring that the agreements reached here will be carried out so that those delays will be ended

and the process outlined in the law, the contracts between the parties, and this Agreement will be

adhered to," Indeed, it is a fundamental principle that "[c]ontracts or statutes are to be read and

understood according to the natural and obvious import of the language, without resorting to

subtle and forced construction for the purpose of either limiting or extending their operation,"

Schoonmaker v. Ho}rt, 148 N.Y, 425,431 (1896). The purpose of the April Letter Agreement

was to avoid delays -- the UFT's conduct is anathema to that goal, and demonstrates its breach.

Accordingly, defendant's motion to dismiss should be denied.

POINT II

DEFENDANT'S MOTION TO STAYLITIGATION PENDING ARBITRATIONSHOULD BE DENIED

The UFT contends, in the alternative, that this action should be stayed pending

arbitration of its grievance concerning the DOE's invocation of the AAA process. While

defendant describes, in its motion papers, the necessary elements for an order to compel

3 The UFT has asserted that, because it cannot control whether a selected and invited arbitratorwill agree to join the rotational panel, the UFT cannot be held accountable for an incompletepanel. This argument is yet another red herring. DOE holds the UFT accountable -- as shouldthis Court -- for its conduct in the selection process, which provides the only opportunity forarbitrator appointment. It is the UFT's delay in selecting and inviting as large a pool ofarbitrators as possible which has resulted in the lack of a full, 39-arbitrator panel.

- 10-

arbitration, the DOE asserts that the resolution of the dispute as to the alternative arbitrator

selection process, while contained in the parties' CBA, is not subject to arbitration.

Both sides agree, it is clear, that Education Law $ 3020(4Xa) permits the DOE

and the UFT to modify the disciplinary procedures contained in Education Law $ 3020-a.

Moreover, the parties agree that the April Letter Agreement itself modifies, and is a part of,

Article 21(G) of the CBA, which, by its own preamble, specifically modifies Education Law $

3020-a. The parties dispute, however, whether the statutory permission to the DOE and the UFT

to modify the procedures of $ 3020-a within a collective bargaining agreement can place the

resolution of disputes concerning those modif,red disciplinary procedures within the grievance

and arbitration proceeding.

Education Law Section 3020(a)(a) provides:

Notwithstanding any inconsistent provision of law,the procedures set forth in section [3020-a] of thisarticle and section t2590-j(7)l of this chapter maybe modified by agreements negotiated between thecity school district of the city of New York and anyemployee organization representing employees ortitles that are or were covered by any memorandumof agreement executed by such city school districtand the united federation of teachers on or afterJune tenth, two thousand two,

The UFT asserts that, by this language, the State Legislature "implicitly

recognized" that disputes over such modiflrcations will be subject to the CBA's grievance and

arbitration process. Yet Education Law Section 3020@)(a) further provides that

[w]here such procedures are so modified: (i)compliance with such modified procedures shallsatisfy any provision of this chapter that requirescompliance with section [3020-a] of this article . , , ,

Accordingly, the Legislature directly links compliance with modified procedures

in the CBA with statutory compliance with Section 3020-a. DOE disagrees that the mechanism

-11-

for resolving compliance disputes, which the UFT asserts, owing to statutory silence, must be

situated in the grievance and arbitration procedure. Rather, "whers public policy concerns are

implicated, a school district will not be deemed to have waived its statutory rights under the

Education Law without an explicit agreement between the parties or compelling evidence that

the school district made a conscious decision to do so." Consedine v. Portsville Cent. Sch. Dist.,

l2 N,Y.3d 286,294 (2009).

While defendant declares Consedine "inopposite," plaintiff asserts that the case's

principle still adheres. That is, unless the statute directs it, or the CBA explicitly expresses the

parties' agreement that the resolution of disputes under Article 2l(G) shall be determined under

the grievance and arbitration process of the CBA, the DOE cannot be deemed to have waived a

statutory right -- the determination of compliance with the modified procedures -- which is a

matter for this Court's determination.

Accordingly, defendant's motion to stay this litigation pending arbitration should

be denied.

t2-

WHEREFORE, plaintiff respectfully requests that the defendant's motion be

denied in its entirety, and for such other and further relief as this Court deems just and proper.

Dated: New York, New YorkNovember 7,2013

MICHAEL A, CARDOZOCorporation Counsel of the

City of New YorkAttorney for Plaintiff100 Church Street, Room 2-143New York, New York 10007(2r2) 3s6-

By:MaxwellAssistant Counsel

.13-


Plaintiff,

-against-


Defendant.

: : : : : : : : : : : :

Index No. 451734/13 (IAS Part 62 : Wright, J.) AFFIRMATION OF ADAM S. ROSS

– – – – – – – – – – – – – – – – – – – – – – – – – – x

ADAM S. ROSS, an attorney duly admitted to practice before the courts of the State of

New York, affirms under penalty of perjury that the following is true and correct:

1. I am General Counsel for Defendant, United Federation of Teachers (“UFT”). I

submit this affirmation in further support of the UFT’s Motion to Dismiss or, In the Alternative,

Stay Litigation Pending Arbitration. I am familiar with the proceedings and documents related

to the above-captioned matter and make this affirmation based upon personal knowledge and my

role as General Counsel.

2013-2014 Arbitrator Selection

2. I have been fully involved in the 2013-2014 arbitrator selection process pursuant

to the parties’ collective bargaining agreement (“CBA”) and Side Letter.

3. As part of that process, on September 6, 2013, the UFT and the BOE exchanged

lists of proposed arbitrators.

4. Also as part of that process, I, together with Claude Hersh, Assistant general

Counsel for the New York Office of the General Counsel of New York State United Teachers,



2

met with representatives of the Board of Education of the City School District of the City of New

York (“BOE”) on September 16, 2013 to discuss the appropriate number of arbitrators. The

BOE indicated it would agree to a panel of 30 arbitrators. It is the UFT’s position that fewer

than 39 arbitrators are needed and that the program would benefit from reinstitution of a

mediation process to more quickly address the significant portion of disciplinary cases which

typically result in settlement. See also Affirmation of Claude I. Hersh, dated October 16, 2013,

¶17, previously submitted in opposition to the BOE’s application for a preliminary injunction, a

copy of which is annexed hereto as Exhibit 1.

5. At no time during the selection process has the UFT taken the position that it will

not select any further arbitrators. Indeed, the UFT has consistently reiterated its willingness to

continue with the selection process despite the BOE’s efforts to abandon discussions in favor of

the AAA arbitrator selection process. In the UFT’s experience, the AAA process typically works

through a strike and rank method, with no limit on the number of strikes permitted. Typically, a

single AAA list, after the parties have made their selections, results in the appointment of one

arbitrator.

6. In connection with the arbitrator selection process, on October 4, 2013, after

discussions with me, Mr. Hersh sent an email to the BOE addressing the assignment of

arbitrators on the panel as well as addressing the then outstanding lists of proposed arbitrators.

Mr. Hersh advised the BOE that its General Counsel, Courtenaye Jackson-Chase, should contact

me (as typically occurs) to continue discussions regarding arbitrator selection. A copy of the

October 4, 2013 email is annexed as Exhibit 2.

3

7. Having not heard from the BOE regarding the outstanding lists, on October 15,

2013, I send a letter reiterating the UFT’s readiness to continue with the selection process. A

copy of the October 15, 2013 letter is annexed as Exhibit 3.

8. Ms. Jackson-Chase’s response letter is annexed hereto as Exhibit 4.

9. At the time of the October 17, 2013 hearing before this Court, the parties had

empaneled 19 arbitrators to hear disciplinary matters.

10. On October 17, 2013, the BOE selected three arbitrators from the September 6,

2013 list. A chain of emails between the representatives of the BOE and the UFT on October

17th and 18th regarding arbitrator selection, including the October 17, 2013 email from

Naeemah Lamont to Claude Hersh, et al., is annexed as Exhibit 5.

11. The following day, the UFT selected three arbitrators from the BOE's September

6 list and suggested the parties attempt to each select a fourth. The October 18, 2013 email from

Claude Hersh to Naeemah Lamont, et al., is included within Exhibit 5. In the same email, the

UFT also agreed to exchange another list of proposed arbitrators on October 22, 2013. The BOE

declined to select a fourth arbitrator, but indicated its willingness to exchange new lists on

October 21 or 22. The October 18, 2013 email from Naeemah Lamont to Claude Hersh, et al., is

included within Exhibit 5.

12. On October 21, 2013, the UFT selected a fourth arbitrator from the September 6

list. The UFT also confirmed it would be prepared to provide a list of 10 proposed arbitrators the

following day and would discuss future list exchanges. The October 21, 2013 email from Claude

Hersh to Naeemah Lamont is annexed as Exhibit 6.

13. On October 22, 2013, the parties exchanged lists of 10 names each. The BOE

indicated it would be prepared to select names on Friday. The UFT asked to make selections on

4

Monday, to allow time to research proposed arbitrators from outside the New York City area

about whom sufficient 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 stated that it would 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 asserted that weekly list

will still be needed. A copy of the October 22, 2013 email from Naeemah Lamont to Claude

Hersh, et al., is annexed as Exhibit 7. A copy of the October 22, 2013 email chain between

representatives of the BOE and the UFT is annexed as Exhibit 8.

14. On October 28, 2013 the UFT selected four names from the October 22 list. The

BOE selected six names form the same list. The parties discussed by email how the invited

arbitrators should be assigned within the panel. A copy of the October 28, 2013 email chain

between representatives of the BOE and the UFT is annexed as Exhibit 9.

15. Having not received any further communications from the BOE regarding the

exchange of lists, per my instruction, on November 8, 2013, Claude Hersh emailed the BOE

proposing another exchange of lists for November 12, 2013. The November 8, 2013 email from

Claude Hersh to Naeemah Lamont, et al., is annexed as Exhibit 10.

16. On November 12, 2013, per the UFT’s suggestion, the parties exchanged lists of

ten new arbitrators each. Copies of the UFT’s and BOE’s November 12, 2013 emails proposing

arbitrators are annexed as Exhibit 11.

17. Thus, since the October 17, 2013 hearing before the Court, the parties have agreed

to invite another 17 arbitrators to join the panel, with the UFT having agreed to 8 and the BOE

having agreed to 9. In all, since July, the UFT has selected 15 arbitrators and the BOE has

selected 16. As of November 13, 2013, 22 arbitrators have accepted positions on the panel, with

5

seven invitations still outstanding and a pending list of 20 names which the parties are

considering.

Grievance and Arbitration Process

18. The instant matter is not the first time the UFT has filed a grievance under Article

21G of the parties’ collective bargaining agreement (“CBA”), providing a modified disciplinary

process pursuant to Education Law §3020(4).

19. Education Law §3020(4) explicitly authorizes the parties to agree, through

collective bargaining and with certain limitations, to an alternative disciplinary process,

including establishing a rotational panel of arbitrators and setting out a process for their

selection. The statute makes compliance with that contractual process sufficient for the BOE and

the UFT to satisfy the requirements of §3020-a. The law provides no restriction on the parties

ability to utilize a grievance and arbitration process to enforce the contractual disciplinary

process. See Mem of Assembly Rules Comm, 2002 NY Legis Ann at 62, annexed hereto as

Exhibit 12 (“This part [of Section 3020(4)] authorizes the City of New York and the United

Federation of Teachers to modify the current disciplinary procedures with an alternative process

by notwithstanding provisions of law inconsistent with the bargaining agreement. This bill will

only be effective upon ratification of the contract.”); Office of Mayor of City of New York Mem

in Support, Bill Jacket, L 2002, ch 93, annexed as Exhibit 13 (accord).

20. UFT records demonstrate that prior grievances alleging violations of Article 21G

were processed by the BOE in the same manner as other grievances, with no objection having

been raised on the grounds now being used to avoid the proper grievance and arbitration process.

21. Annexed hereto are several examples of grievances alleging violations of Article

21G. In each case, the Step 2 decision is provided. Per the CBA, at Step 2, a grievance is heard

6

by the Chancellor of the BOE or his/her designee and a written determination issued. The UFT

may file demands to arbitrate a grievance denied at the Step 2 level.

22. Attached as Exhibit 14 is a true and correct copy of UFT v. Department of

Education of the City of New York, Case OLR #071847, UFT Case #C15504 (Step 2

Determination, June 22, 2007) (determining union initiated grievance asserting a violation of

Article 21G(5) on the merits).

23. Attached as Exhibit 15 is a true and correct copy of DePrima v. Department of

Education of the City of New York, Case OLR #100666, UFT Case #R40554 (Step 2

Determination, Oct. 20, 2009) (determining grievance asserting a violation of Article 21G(5) on

the merits), along with the subsequent demand for arbitration filed by the UFT with the BOE

pursuant to the contractual grievance and arbitration process.

24. Attached as Exhibit 16 is a true and correct copy of Velocci v. Department of

Education of the City of New York, Case OLR #070977, UFT Case #K30772 (Step 2

Determination, Feb. 12, 2007) (determining grievance asserting a violation of Article 21G on the

merits), along with the subsequent demand for arbitration filed by the UFT with the BOE


25. Attached as Exhibit 17 is a true and correct copy of Settles v. Department of

Education of the City of New York, Case OLR #051669, UFT Case #R27091 (Step 2

Determination, Oct. 13, 2005) (determining grievance asserting a violation of Article 21G on the

merits), along with the subsequent demand for arbitration filed by the UFT with the BOE


26. Indeed, I have been advised by Ellen Gallin Procida, Director, UFT Grievance

Department, who represented the UFT in the underlying grievance in this matter, that during the

7

Step 2 hearing held on November 7, 2013, the BOE’s advocate did not argue that disputes

regarding the application of Article 21G are not grievable. Rather, the BOE argued the merits of

the grievance.

Dated: New York, New York November 13, 2013

__/s/ ADAM S. ROSS____ ADAM S. ROSS


Plaintiff

-against-


Defendant.

::::::::::::

Index No. 451734/13

AFFIRMATION OF CLAUDE I. HERSH IN OPPOSITION TO PLAINTIFF’S APPLICATION FOR A PRELIMINARY INJUNCTION

– – – – – – – – – – – – – – – – – – – – – – – – – – x

CLAUDE I. HERSH, an attorney duly admitted to practice before the Courts of the

State of New York, hereby affirms the following to be true under penalty of perjury:

1. I am the Assistant General Counsel for the New York City Office of the General

Counsel of the New York State United Teachers (“NYSUT”). NYSUT is a Statewide umbrella

organization affiliated with Defendant, United Federation of Teachers (“UFT”), that, inter alia,

provides tenured pedagogues charged with misconduct or incompetence the option of having a

NYSUT attorney represent them in their § 3020-a proceeding without fee. I oversee the

provision of those services and work closely with the UFT to administer and monitor the

disciplinary process applicable to New York City teachers. I submit this affirmation in support

of Defendant’s opposition to Plaintiff’s application for a mandatory injunction requiring the UFT

to participate in the an arbitration selection process through the American Arbitrators

Association (“AAA”). I am fully familiar with the facts set forth below:



2


2. In order to expedite the scheduling of Education Law §3020-a hearings, both the

UFT and the Board of Education of the City School District of the City of New York (“BOE”)

agreed to modify their existing Collective Bargaining Agreement (“CBA”), memorialized in a

letter agreement signed by both parties on April 15, 2010 (“April Letter Agreement”).

Complaint, Ex. 1.

3. The Agreement provides, inter alia, for an increase in the number of arbitrators

from 20 to 39, while giving the parties the right to discuss that number if either party believes it

is too high or too low. It also provided for a mediation program designed to resolve cases

quickly so they would not have to be scheduled for hearings in front of arbitrators.

4. In the year following the Agreement, both parties were able to agree to, and seat,

39 arbitrators.

5. During that first year the mediation program also proved to be very successful,

resulting in some 46% of all cases submitted to mediation settling, without need to resort to a

hearing. Of the cases involving alleged misconduct (“ATU” cases) submitted to mediation, 43%

were settled. Of the competency cases submitted (“TPU” cases), 56% were settled. Indeed,

even without a formal mediation process, during the 2009-10, 2010-11 and 2011-12 school

years, settlements ranged from 63% to 75% of all cases heard that year. The vast majority of

cases either settled or resulted in some form of punishment besides termination.

6. After that first year, however, unanticipated problems developed. It became

apparent that the State Education Department (“SED”), responsible for providing compensation

to the arbitrators, had continually failed to pay the arbitrators on time and in some cases not at

all. This caused a number of arbitrators to quit the panel and others to decline invitations to join

3

the panel. In 2012, the accumulation of back pay was so great, that 10 of the 24 then-seated

arbitrators quit and a group of 33 arbitrators sued SED for $5.1 million in back pay. See Melissa

Russo and Tom Burke, I-Team: Arbitrators for Teacher Misconduct Cases Are Quitting;

available at: http://www.nbcnewyork.com/investigations/I-Team-Arbitrators-For-Teacher-

Misconduct-Cases-Are-Quitting-157386515.html (accessed October 16, 2013). Thus, while the

parties were able to seat 39 arbitrators the first year, they have had difficulty in the subsequent

years. Exacerbating the issue, despite the program’s initial success, the BOE declined to

continue the mediation program after the first year, thus adding to the arbitration case load.

Arbitrator Selection For the 2013-14 School Year

7. On June 27, 2013, I contacted Naeemah Lamont, Director of the Teacher

Performance Unit of the BOE and Laura Hemans Brantley, Director of the Administrative Trials

Unit of the BOE, suggesting that the parties begin discussion regarding the 2013-2014 panel of

arbitrators as early as possible. See Email from Claude Hersh, dated June 27, 2013, annexed as

Exhibit 1. Both parties participated in a conference call on July 8, 2013. Prior to that call, I

suggested in an email that both parties agree to not drop any arbitrators from the panel:


See Email from Claude Hersh, dated July 1, 2013, annexed as Exhibit 2.

8. Nevertheless, on the July 8 call, the BOE advised that the BOE would be

dropping three arbitrators. To balance the panel, the UFT also determined to discontinue three

arbitrators, which, along with one resignation combined to reduce the total number of arbitrators

to 13.

4

9. Despite precipitating a substantial drop in the number of arbitrators, the BOE

claimed on July 8 that it was anxious to get to a full complement of arbitrators. The UFT and

NYSUT shared the goal of selecting an appropriate number of acceptable arbitrators. During the

conference call, both parties agreed to propose 10-15 arbitrators.

10. On July 23, 2013 I sent a list to the BOE on behalf of the UFT and received a list

from the BOE of proposed arbitrators. See Email from Claude Hersh, dated July 23, 2013,

annexed as Exhibit 3; Email from Naeemah Lamont, dated July 23, 2013, annexed as Exhibit 4.

11. A follow-up call occurred the next day, during which the BOE approved of draft

invitation letters which I had previously offered to prepare, but was awaiting certain information

from the BOE. The parties also discussed the reassignment of cases and approval of arbitrators.

12. On July 29 2013, each party agreed to six of the arbitrators proposed by the other

party. See Email from Claude Hersh, dated July 29, 2013, annexed as Exhibit 5; Email from

Laura Brantley, dated July 29, 2013, annexed as Exhibit 6. Additionally, two arbitrators were on

both lists, for a total of 14 newly agreed to arbitrators. Thus, contrary to the BOE’s implication,

the selection process has been proceeding apace.

13. On August 1, 2013, the BOE finally provided the needed information to finalize

the invitation letters. I worked to complete the letters and sent them out on August 15, 2013.

All-in-all, some 27 arbitrators (13 existing and 14 newly selected) received invitation letters.

Copies of the invitation letters are annexed as Exhibit 7.

14. As of August 29, 2013, four BOE-nominated arbitrators declined, two UFT-

nominated arbitrators declined, one arbitrator nominated by both parties declined, as well as one

existing arbitrator, bringing the total number of potential arbitrators to 19. Had the BOE agreed

to mutually forgo dropping existing arbitrators, that number could have been 25.

5

15. The parties thereupon moved to continue the process, holding another conference

call on August 29, 2013 and, again, both sides agreed to submit new lists of arbitrators.

16. On September 6, 2013, on behalf of the UFT, I exchanged a list of 10 proposed

arbitrators with the BOE. See Email from Claude Hersh, dated September 6, 2013, annexed as

Exhibit 8; Email from Naeemah Lamont, dated September 6, 2013, annexed as Exhibit 9.

17. On September 16, 2013, I, together with UFT representatives, met with BOE

representatives to discuss how many arbitrators were needed in light of the parties’ experience

with how many cases typically settled in the early stages. The BOE indicated it would agree to

30 arbitrators. Given the significant rate at which cases settled, the UFT proposed that 24

arbitrators would be sufficient, together with a mediation program similar to the one adopted in

2010 and temporarily reinstituted during Summer 2013.

18. At no time did either the UFT or I state that the UFT declined to continue the


lower number could not be reached. Nor did the BOE provide at that time, or since, a response

to the lists of proposed arbitrators exchanged on September 6, 2013.

19. Instead, some three days later, the BOE sent a letter accusing the UFT of

unspecified delay, demanding that the UFT agree by the next day to select 30 arbitrators within

the subsequent 14 days. See September 19, 2013 BOE letter, Complaint, Ex 2. Despite the

many months of progress made by the parties, the BOE threatened immediate legal action

against the UFT if it did not consent within the unreasonable and arbitrary one-day timeframe.

The letter inexplicably held the UFT entirely responsible for there not being more arbitrators

who accepted positions. The BOE made no reference to the fact that many of the arbitrators that

had been proposed so far had declined the invitation. Nor did the letter discuss the BOE’s own

6

decision to drop arbitrators at the beginning of the discussion process. Nor did the BOE’s letter

address the fact that the UFT currently had an outstanding list of proposed arbitrators awaiting

the BOE’s response. And the BOE’s letter made no mention of the successful mediation

program that it had recently discontinued (and which it knew was subject to an ongoing

collective bargaining fact finding process under the auspices of the Public Employment Relations

Board).

20. In that same letter, Plaintiff claimed that the difficulty in selecting arbitrators was

entirely due to the UFT attempting to discuss with the BOE that fewer arbitrators would be

appropriate:



21. In fact, no modification is necessary, as the April Letter Agreement explicitly

provides that the parties should meet to discuss whether more or fewer arbitrators would be

appropriate. Thus, the BOE’s threats were based on nothing more than the UFT exercising its

right under the April Letter Agreement to engage in such discussions.

22. The letter contained the following ultimatum:


7


23. The BOE provided no justification for either the September 20 date or the

October 4 date. Furthermore, the BOE provided no explanation for how, in light of the

difficulties the parties had faced thus far in agreeing to arbitrator candidates and in getting those

candidates to accept invitations, the UFT could possibly comply with this demand.

24. The following day, on September 20th, the UFT answered the BOE, but the BOE

offered no further response to that letter or the then two-weeks outstanding list of proposed

arbitrators. See September 20, 2013 UFT letter, Complaint, Ex 3. Rather, on the next business

day, September 23, 2013, the BOE wrote directly to the AAA attempting to unilaterally activate

the contractual impasse resolution process provided in the CBA without the parties having

actually reached an impasse as to the selection of arbitrators. See September 23, 2013 BOE

Letter, Complaint, Ex. 4. (Indeed, contrary to the conclusion drawn by the BOE, with 19

arbitrators selected and 20 outstanding proposals, the parties could have, if the arbitrators

accepted, achieved the BOE’s goal of 30 arbitrators rather than engage in litigation). Similar to

the BOE’s September 19 letter, this letter provided no background as to the parties’ progress in

selecting arbitrators and difficulties in obtaining acceptances from those they invited. Instead, it

merely stated that the parties had been unable to agree thus far.

25. Again, the following day, the UFT responded by letter dated September 24, 2013.

See September 24, 2013 UFT Letter, Complaint, Ex. 5. The UFT informed the AAA that as the

parties continue to discuss the selection of arbitrators, the provision cited by the BOE –

applicable to instances where the parties “cannot agree” – had not been triggered. The UFT

requested that the AAA refrain from becoming involved until it was actually appropriate for it to

do so under the CBA.

8

26. The BOE wrote again to the AAA on September 25, 2013, admitting that the

parties had been agreeing on arbitrators and inviting them to join their panel, but attempting to

somehow blame the UFT for the low acceptance rate. See September 25, 2013 BOE Letter,

Complaint, Ex. 6. Moreover, having identified an important reason for the inability to employ a

full complement of arbitrators, the BOE failed to indicate how the parties would fare any better

in an AAA process, where the arbitrators are similarly free to decline the invitation. Likewise,

the BOE acknowledged that there were outstanding lists of arbitrators, but for the first time

blamed the UFT for not being prepared to proceed. Yet, the BOE had itself not responded to the

UFT’s list. The letter went on to insist that the AAA commence the selection process over the

UFT’s objection.

27. Recognizing that it would be inappropriate to intervene without the support of

both parties, the AAA rejected the BOE’s request to intervene on September 26, 2013. On the

same day, the BOE commenced this action. The following day, the BOE requested a mandatory

injunction seeking to compel UFT participation in the AAA process despite the BOE still not

having responded to the UFT’s September 6 list of proposed arbitrators.

28. Despite the fact that the BOE has, apparently abandoned negotiation in favor of

litigation, the UFT remains willing to continue discussions over potential arbitrators. Indeed, to

make that clear, on October 15, 2013, the UFT issued a letter to Plaintiff confirming that it

remains ready to provide the names of agreeable arbitrators from the BOE’s list, and asking

whether the BOE is prepared to do the same. See October 15, 2013 UFT Letter, annexed as

Exhibit 10.

1

Stone, Mac

From: Claude Hersh <[email protected]>Sent: Friday, October 04, 2013 9:45 AMTo: [email protected]: Case Assignments

Dennis: I spoke to Adam Ross about assigning cases. He would like usto assign all the cases to the present TPU arbitrators. This wouldinclude the outstanding cases assigned to Marc Winters and Arthur Matthews. Hopefully, we can settle some of thecases at the pre hearing conferences. In regards to adding new arbitrators, Courtenaye JacksonChase should call Adam if she wants to discuss that issue. I am atPERB this morning but will be in my office later this afternoon if you want to discuss. Thanks, Claude

LEGALLY PRIVILEGED AND CONFIDENTIAL

The information contained in this e mail is legally privileged and confidential. It is intended only for the use of theindividual or entity named above. If the reader of this message is not the intended recipient, you are hereby notifiedthat any dissemination, distribution or copy of this e mail is strictly prohibited. If you have received this e mail in error,please immediately notify me at [email protected] and destroy all hard copies and any copies that may be on yourcomputer.

Thank you,

CLAUDE I. HERSHAssistant General CounselNew York State United Teachers52 Broadway, 9th FloorNew York, New York 10004212 533 6300Fax: 212 228 [email protected]



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Stone, Mac

From: Kolker, DinaSent: Wednesday, November 13, 2013 11:09 AMTo: Stone, MacSubject: FW: UFT Proposed Arbitrators

From: Lamont Naeemah [mailto:[email protected]]Sent: Friday, October 18, 2013 4:41 PM To: '[email protected]'; DaCosta Dennis; Brantley Laura; Pope Marvin Cc: '[email protected]'; '[email protected]'; Jackson-Chase Courtenaye; Cooney Tracy; Adam Ross; Carol Gerstl; Ellen Procida Subject: Re: UFT Proposed Arbitrators

Claude:

Thank you for getting back to me regarding the UFT’s three selections. At this time, the DOE is unable to choose afourth arbitrator from the UFT’s September 6th list. However, that in no way prevents the UFT from making a fourthselection from the DOE’s list, if you so choose.

With regard to the exchange of future lists, as I previously indicated, the DOE is prepared to exchange lists on Monday.However we would be happy to agree to a mutual exchange on Tuesday October 22nd if that works better for the UFT.

Additionally, the parties are well aware of the SED payment issues. However as past proposed candidates haveindicated, they are less likely to have availability in the near term the longer it takes for us to select them.

If indeed the payment issues have been “essentially corrected” as you have indicated, then the DOE would have noobjection to considering arbitrators who have resigned or declined appointment due to non payment.

The DOE stands ready to set up a weekly list exchange with the UFT until we can obtain a full panel. Although youindicated that the UFT is “ready to discuss future lists,” please advise as to whether the UFT will agree to a weeklyexchange.

Naeemah Lamont

Director, Teacher Performance Unit

NYC Department of Education

Office of The General Counsel

51 Chambers Street, Room 611

New York, N.Y. 10007

Tel: (212) 374 6034



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Fax: (212) 374 9298

[email protected]

Confidentiality Notice: This e mail communication and any attachments may contain confidential and privilegedinformation for the use of the designated recipients named above. If you are not the intended recipient, you arehereby notified that you have received this ttcommunication in error and that any review, disclosure, dissemination,distribution or copying of it or its contents is prohibited. If you have received this communication in error, please notifyme immediately by replying to this message and deleting it from your computer. Thank you.

From: Claude Hersh [mailto:[email protected]]Sent: Friday, October 18, 2013 3:12 PMTo: DaCosta Dennis; Brantley Laura; Pope Marvin; Lamont NaeemahCc: Ariana A. Donnellan; Isabel Lappin; Jackson Chase Courtenaye; Cooney Tracy; Adam Ross; Carol Gerstl; EllenProcidaSubject: RE: UFT Proposed Arbitrators

Naeemah:

The UFT selects the following arbitrators from your list:

1. Jeffrey Selchick

2. Lela Porter Love

3. Edmund Gerber

Also, the UFT is investigating whether it could select a fourth arbitrator from your list. Please advise us if you would beable to choose a fourth arbitrator from the UFT list.

We would be ready to exchange a new list of ten arbitrators on Tuesday, October 22, 2013. We are also ready todiscuss the exchange of future lists.

Finally, many arbitrators either resigned from the Panel or declined our invitation to join the Panel because New YorkState was not paying them. That problem has been essentially corrected. Therefore, we think it is appropriate toconsider some arbitrators who had previously resigned or declined appointment.

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From: Claude Hersh [mailto:[email protected]]Sent: Friday, October 18, 2013 03:12 PM To: DaCosta Dennis; Brantley Laura; Pope Marvin; Lamont Naeemah Cc: Ariana A. Donnellan <[email protected]>; Isabel Lappin <[email protected]>; Jackson-Chase Courtenaye; Cooney Tracy; Adam Ross <[email protected]>; Carol Gerstl <[email protected]>; Ellen Procida <[email protected]>Subject: RE: UFT Proposed Arbitrators Naeemah: The UFT selects the following arbitrators from your list: 1. Jeffrey Selchick 2. Lela Porter Love 3. Edmund Gerber Also, the UFT is investigating whether it could select a fourth arbitrator from your list. Please advise us if you would be able to choose a fourth arbitrator from the UFT list. We would be ready to exchange a new list of ten arbitrators on Tuesday, October 22, 2013. We are also ready to discuss the exchange of future lists. Finally, many arbitrators either resigned from the Panel or declined our invitation to join the Panel because New York State was not paying them. That problem has been essentially corrected. Therefore, we think it is appropriate to consider some arbitrators who had previously resigned or declined appointment. We look forward to your response. Claude

LEGALLY PRIVILEGED AND CONFIDENTIAL The information contained in this e-mail is legally privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this e-mail is strictly prohibited. If you have received this e-mail in error, please immediately notify me at [email protected] and destroy all hard copies and any copies that may be on your computer. Thank you, CLAUDE I. HERSH Assistant General Counsel New York State United Teachers 52 Broadway, 9th Floor New York, New York 10004 212-533-6300 Fax: 212-228-9253 [email protected] >>> "Lamont Naeemah" <[email protected]> 10/17/2013 1:52 PM >>> Claude: As indicated in our previous communication, the DOE is ready to select from the list exchanged on September 6th.

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The DOE selections are as follows: James Gross James Markowitz James Cooper Please immediately advise us as to the UFT's selections. Additionally, please be advised that the DOE is prepared to exchange a new list of 20 additional arbitrators for your consideration. We can provide you with this list on Monday October 21st. In the interest of efficiency, I think that it would behoove the parties to be thoughtful when selecting arbitrators for consideration. In order to have the best chance at finding qualified arbitrators who are likely to accept the parties invitation to the panel, it would be best if we do not propose arbitrators who have repeatedly declined previous invitations. It would also serve the process if we do not propose arbitrators who have previously quit the panel or arbitrators who the parties previously removed from the panel, as such selections inevitably serve to only to delay the process. Please also be advised that going forward, the DOE is prepared to send a list of 20 names each week until we have reached a full complement. Please advise as to whether or not the UFT will be prepared on Monday October 21st to exchange a list of 20 additional arbitrators and if the UFT is amenable to a weekly list exchange of 20 names until such time that a full panel is reached. Naeemah Lamont Director, Teacher Performance Unit NYC Department of Education Office of The General Counsel 51 Chambers Street, Room 611 New York, N.Y. 10007 Tel: (212) 374-6034 Fax: (212) 374-9298 [email protected] Confidentiality Notice: This e-mail communication and any attachments may contain confidential and privileged information for the use of the designated recipients named above. If you are not the intended recipient, you are hereby notified that you have received this communication in error and that any review, disclosure, dissemination, distribution or copying of it or its contents is prohibited. If you have received this communication in error, please notify me immediately by replying to this message and deleting it from your computer. Thank you. -----Original Message----- From: Lamont Naeemah Sent: Tuesday, September 10, 2013 1:01 PM To: 'Claude Hersh'; DaCosta Dennis; Brantley Laura; Pope Marvin Cc: Ariana A. Donnellan; Isabel Lappin; [email protected] Subject: RE: UFT Proposed Arbitrators The DOE will be ready to provide you with our selections from your proposed list by this Thursday. Will the UFT be able to do the same? Naeemah Lamont Director, Teacher Performance Unit NYC Department of Education Office of The General Counsel 51 Chambers Street, Room 611 New York, N.Y. 10007

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Tel: (212) 374-6034 Fax: (212) 374-9298 [email protected] Confidentiality Notice: This e-mail communication and any attachments may contain confidential and privileged information for the use of the designated recipients named above. If you are not the intended recipient, you are hereby notified that you have received this communication in error and that any review, disclosure, dissemination, distribution or copying of it or its contents is prohibited. If you have received this communication in error, please notify me immediately by replying to this message and deleting it from your computer. Thank you. -----Original Message----- From: Claude Hersh [mailto:[email protected]] Sent: Friday, September 06, 2013 12:01 PM To: DaCosta Dennis; Brantley Laura; Pope Marvin; Lamont Naeemah Cc: Ariana A. Donnellan; Isabel Lappin; [email protected] Subject: UFT Proposed Arbitrators The UFT proposed the following arbitrators for the UFT/DOE 3020-a Panel. Please note that some of these arbitrators previously served but resigned because of payment issues. Since the arbitrators are now being paid, I believe they may be willing to return to the panel. 1. James Gross 2. James Markowitz 3. Eric Lawson 4. Jack Tillem 5. Melissa Biren 6. Mattye Gandel 7. Paul Zonderman 8. Stephen Bluth 9. James Cooper 10. Susan Brown

*******************************************************************************The views, opinions, and judgments expressed in this message are solely those of the author. The message contents have not been reviewed or approved by the UFT.*******************************************************************************

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Stone, Mac


From: Claude Hersh [mailto:[email protected]]Sent: Monday, October 21, 2013 06:51 PM To: DaCosta Dennis; Brantley Laura; Pope Marvin; Lamont Naeemah Cc: Ariana A. Donnellan <[email protected]>; Isabel Lappin <[email protected]>; Jennifer Hogan <[email protected]>; Oriana Vigliotti <[email protected]>; Jackson-Chase Courtenaye; Cooney Tracy; Adam Ross <[email protected]>; Carol Gerstl <[email protected]>; Ellen Procida <[email protected]>Subject: Re: UFT Proposed Arbitrators Naeemah: First, the UFT is also willing to invite Thomas Hartigan. Second, in response to Laura's email earlier today, I need to discuss with the UFT how many of the new arbitrators to invite to TPU and ATU. We should be able to provide a response tomorrow. Third, the UFT expects to be able to exchange a list of ten (10) arbitrators tomorrow. At this juncture, the UFT believes that the exchange of lists will have to be discussed further. Claude

LEGALLY PRIVILEGED AND CONFIDENTIAL The information contained in this e-mail is legally privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this e-mail is strictly prohibited. If you have received this e-mail in error, please immediately notify me at [email protected] and destroy all hard copies and any copies that may be on your computer. Thank you, CLAUDE I. HERSH Assistant General Counsel New York State United Teachers 52 Broadway, 9th Floor New York, New York 10004 212-533-6300 Fax: 212-228-9253 [email protected]



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Stone, Mac


From: Lamont Naeemah [mailto:[email protected]]Sent: Tuesday, October 22, 2013 3:01 PM To: Adam Ross; '[email protected]'; DaCosta Dennis; Brantley Laura; Pope Marvin Cc: '[email protected]'; '[email protected]'; Jen Hogan; Oriana Vigliotti; Jackson-Chase Courtenaye; Cooney Tracy; Carol Gerstl; Ellen Procida Subject: Re: UFT Proposed Arbitrators

The DOE proposes the following arbitrators for your consideration.

Eugene Ginsberg goodJospeh P. SpinolaIrene C. Warshauer—from way upstate, mostly commercial experienceRichard LutringerSteve SkulnikEdward BattistiRobert Ahern—Alexia K. BlakeElliot H. ShallerMary Jane Bolter



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Stone, Mac

From: Stone, MacSent: Wednesday, November 13, 2013 12:09 PMTo: Stone, MacSubject: FW: UFT Proposed Arbitrators

From: Lamont Naeemah Sent: Tuesday, October 22, 2013 5:42 PM To: 'Adam Ross'; Oriana Vigliotti; Brantley Laura Cc: [email protected]; [email protected]; [email protected]; Jen Hogan; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; Carol Gerstl; Ellen Procida Subject: RE: UFT Proposed Arbitrators

Adam:

As the DOE is also unfamiliar with many of the arbitrators on the UFT’s list, we have already initiated the process ofresearching these individuals by using the basic conventional methods. However, if Monday works better for the UFTso that you may have more time to research the individuals from our list, the DOE has no objection to that.

In addition, based upon historical acceptance rates, it is reasonable for us to assume that we will need to exchange listsbeyond the lists which were exchanged today. As such, we should at least agree to exchanging weekly lists in the shortterm. Do you agree that this is a reasonable approach until a full panel can be reached?

Naeemah LamontDirector, Teacher Performance UnitNYC Department of EducationOffice of The General Counsel51 Chambers Street, Room 611New York, N.Y. 10007Tel: (212) 374-6034Fax: (212) [email protected] Notice: This e-mail communication and any attachments may contain confidential and privileged information for the use of the designated recipients named above. If you are not the intended recipient, you are hereby notified that you have received this communication in error and that any review, disclosure, dissemination, distribution or copying of it or its contents is prohibited. If you have received this communication in error, please notify me immediately by replying to this message and deleting it from your computer. Thank you.

From: Adam Ross [mailto:[email protected]]Sent: Tuesday, October 22, 2013 4:05 PM To: Lamont Naeemah; Oriana Vigliotti; Brantley Laura Cc: [email protected]; [email protected]; [email protected]; Jen Hogan; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; Carol Gerstl; Ellen Procida Subject: RE: UFT Proposed Arbitrators



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Naeemah,

We will need until Monday to respond to the list so that we can use the weekend to research the individuals the Boardhas proposed; many of these people we are unfamiliar with. Any information you can provide about them (e.g.,resumes, decisions) would be helpful. Once we see how many people are selected, we can then decide whether thereis a need to exchange further lists and, if so, determine when to do so.

Best,

Adam

Adam S. Ross, Esq.General CounselUnited Federation of Teachers14th Floor52 BroadwayNew York, NY 10004(212) 701-9420

CONFIDENTIALITY NOTICE: This communication (including any attachments) is confidential and privileged. The information is intended for the sole use of the addressee. If you are not the intended recipient, you are advised that any disclosure, copying, distribution, use, or the taking of any action in reliance upon this communication is prohibited. If you have received this communication in error, please notify the sender by electronic mail or by telephone (212-701-9420) immediately and delete this communication (including any attachments).

From: Lamont Naeemah [mailto:[email protected]]Sent: Tuesday, October 22, 2013 3:15 PM To: Oriana Vigliotti; Brantley Laura Cc: '[email protected]'; '[email protected]'; '[email protected]'; Jen Hogan; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; Adam Ross; Carol Gerstl; Ellen Procida Subject: Re: UFT Proposed Arbitrators

The DOE will be prepared to make selections from the UFT's list by Friday, October 25th.Please advise as to whether the UFT will be prepared to do the same.Thanks.

From: Oriana Vigliotti [mailto:[email protected]]Sent: Tuesday, October 22, 2013 03:02 PM To: Brantley Laura; Lamont Naeemah Cc: Ariana A. Donnellan <[email protected]>; Claude Hersh <[email protected]>; Isabel Lappin <[email protected]>; Jennifer Hogan <[email protected]>; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; '[email protected]' <[email protected]>; Carol Gerstl <[email protected]>; '[email protected]' <[email protected]>Subject: UFT Proposed Arbitrators The UFT proposes the following arbitrators for the 3020-a Panel: Marlene Gold (please note that as of 1/1/13 Ms. Gold will no longer be chair of OCB and has agreed to serve on the UFT/DOE contract arbitration panel as of that date)Gary Kendellen

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Michael LazanJoseph LicataDaniel BrentMariann ShickIra LobelStuart PohlFred DensonLouis Verrone

Oriana Vigliotti, Esq. New York State United Teachers Office of General Counsel 52 Broadway, 9th Floor New York, NY 10004 (212) 533-6300 *******************************************************************************The views, opinions, and judgments expressed in this message are solely those of the author. The message contents have not been reviewed or approved by the UFT.**************************************************************************************************************************************************************The views, opinions, and judgments expressed in this message are solely those of the author. The message contents have not been reviewed or approved by the UFT.*******************************************************************************

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Stone, Mac

From: Stone, MacSent: Wednesday, November 13, 2013 12:21 PMTo: Stone, MacSubject: FW: UFT Proposed Arbitrators

From: Oriana Vigliotti [mailto:[email protected]]Sent: Tuesday, October 29, 2013 11:35 AM To: Brantley Laura; Lamont Naeemah; Adam Ross Cc: Ariana A. Donnellan; Claude Hersh; Isabel Lappin; Jen Hogan; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; Carol Gerstl; Ellen Procida Subject: RE: UFT Proposed Arbitrators

Naeemah, The UFT will agree to invite 8 arbitrators to the TPU panel and 2 arbitrators to the ATU panel. From your original list we suggest moving Eugene Ginsberg from ATU to TPU to come to 8 TPU and 2 ATU from your proposal of 7 TPU and 3 ATU. Other than that, your original list is acceptable. I will send the invitations out no later than this Thursday. Also, in your email you indicate that we are still waiting to hear back from 6 of the arbitrators invited last week. We are actually waiting to hear back from 5, as both James Cooper and Jeffrey Selchick declined our offer. Finally, please note that the UFT's engagement in the current arbitrator selection process is in no way a waiver of the UFT's right to enter into discussions regarding the appropriateness of the number of hearing officers. -Oriana

Oriana Vigliotti, Esq. New York State United Teachers Office of General Counsel 52 Broadway, 9th Floor New York, NY 10004 (212) 533-6300

>>> "Lamont Naeemah" <[email protected]> 10/28/2013 5:53 PM >>>

Oriana,

From the 7 invitations which were sent out this past Friday (5 invitations for TPU and 2 for ATU), we are still waiting tohear back from 6 of those arbitrators. As you know, James Cooper has already responded and he declined theinvitation to join the ATU panel. While TPU has the potential to gain 5 additional arbitrators from the outstandinginvitations, ATU is only left with 1 possible arbitrator appointment from this round of invitations.

At this time, if we only invite 1 additional arbitrator to the ATU panel from the current list, that would only allow for 2additional arbitrators to be seated to the misconduct panel.



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As there continues to be a need for additional arbitrators on both the TPU and ATU panel and since the parties need tomake every effort to seat the full panel, the Dept will agree to invite 8 arbitrators to TPU and 2 arbitrators to ATU.

Please advise as to whether the UFT will agree to this compromise.

Thanks.


From: Oriana Vigliotti [mailto:[email protected]]Sent: Monday, October 28, 2013 5:17 PM To: Brantley Laura; Lamont Naeemah; '[email protected]' Cc: Ariana A. Donnellan; Claude Hersh; Isabel Lappin; Jennifer Hogan; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; Carol Gerstl; '[email protected]' Subject: RE: UFT Proposed Arbitrators

Naeemah, In light of the current composition of the Panel and the outstanding invitations, the UFT would be willing to agree to 9 TPU invitations and 1 ATU invitation. -Oriana

Oriana Vigliotti, Esq. New York State United Teachers Office of General Counsel 52 Broadway, 9th Floor New York, NY 10004 (212) 533-6300>>> "Lamont Naeemah" <[email protected]> 10/28/2013 5:07 PM >>>

Oriana:

As there continues to be a need for more arbitrators on both the ATU and the TPU panel, the DOE suggests that theparties invite 7 arbitrators to TPU and 3 to ATU.

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We suggest that the following arbitrators be invited to the respective panels as follows:

TPU Marlene Gold, Michael Lazan, Daniel Brent, Eliot H. Shaller, Edward Battisti, Mary Jane Bolter, Louis Veronne

ATU Ira Lobel, Mariann Schick, Eugene Ginsberg

Please advise as to whether this is acceptable.


From: Oriana Vigliotti [mailto:[email protected]]Sent: Monday, October 28, 2013 2:34 PM To: Brantley Laura; Lamont Naeemah; '[email protected]' Cc: Ariana A. Donnellan; Claude Hersh; Isabel Lappin; Jennifer Hogan; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; Carol Gerstl; '[email protected]' Subject: RE: UFT Proposed Arbitrators

Laura and Naeemah, The UFT proposes that the parties invite all 10 newly-agreed upon arbitrator selections to the TPU panel. Please advise if this is acceptable. -Oriana

Oriana Vigliotti, Esq. New York State United Teachers Office of General Counsel 52 Broadway, 9th Floor New York, NY 10004 (212) 533-6300>>> "Brantley Laura" <[email protected]> 10/28/2013 12:31 PM >>> The Department selects the following arbitrators from the UFT’s list:

1. Louis Verrone

2. Ira Lobel

3. Mariann Schick

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4. Marlene Gold

5. Michael Lazan

6. Daniel Brent

Thanks,

Laura

From: Lamont Naeemah Sent: Monday, October 28, 2013 11:29 AM To: '[email protected]'; Brantley Laura; '[email protected]' Cc: '[email protected]'; '[email protected]'; '[email protected]'; '[email protected]'; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; '[email protected]'; '[email protected]' Subject: Re: UFT Proposed Arbitrators

Ok

From: Oriana Vigliotti [mailto:[email protected]]Sent: Monday, October 28, 2013 11:12 AM To: Brantley Laura; Lamont Naeemah; 'Adam Ross' <[email protected]>Cc: Ariana A. Donnellan <[email protected]>; Claude Hersh <[email protected]>; Isabel Lappin <[email protected]>; Jennifer Hogan <[email protected]>; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; Carol Gerstl <[email protected]>; 'Ellen Procida' <[email protected]>Subject: RE: UFT Proposed Arbitrators Naeemah, Let's exchange at 12:30. -Oriana

Oriana Vigliotti, Esq. New York State United Teachers Office of General Counsel 52 Broadway, 9th Floor New York, NY 10004 (212) 533-6300>>> "Lamont Naeemah" <[email protected]> 10/28/2013 10:42 AM >>>

The DOE is prepared to exchange lists today. Please advise as to what time you would like to do so.

Thank you.

Naeemah LamontDirector, Teacher Performance UnitNYC Department of Education

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Office of The General Counsel51 Chambers Street, Room 611New York, N.Y. 10007Tel: (212) 374-6034Fax: (212) [email protected] Notice: This e-mail communication and any attachments may contain confidential and privileged information for the use of the designated recipients named above. If you are not the intended recipient, you are hereby notified that you have received this communication in error and that any review, disclosure, dissemination, distribution or copying of it or its contents is prohibited. If you have received this communication in error, please notify me immediately by replying to this message and deleting it from your computer. Thank you.

1

Stone, Mac

From: Claude Hersh <[email protected]>Sent: Friday, November 08, 2013 1:10 PMTo: Dennis DaCosta; Laura Brantley; Marvin Pope; Naeemah Lamont; Tracey CooneyCc: Jennifer Hogan; Lena Ackerman; Oriana Vigliotti; Richard Casagrande; Adam Ross;

Carol Gerstl; Ellen ProcidaSubject: Exchange of Arbitrator Lists

I am writing to suggest that we exchange our next list of 10 arbitrators on Tuesday, November 12, 2013. Please advise if this is acceptable to the DOE. Thanks, Claude LEGALLY PRIVILEGED AND CONFIDENTIAL The information contained in this e-mail is legally privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this e-mail is strictly prohibited. If you have received this e-mail in error, please immediately notify me at [email protected] and destroy all hard copies and any copies that may be on your computer. Thank you, CLAUDE I. HERSH Assistant General Counsel New York State United Teachers 52 Broadway, 9th Floor New York, New York 10004 212-533-6300 Fax: 212-228-9253 [email protected]



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Stone, Mac

From: Brantley Laura <[email protected]>Sent: Tuesday, November 12, 2013 4:05 PMTo: Claude HershCc: Oriana Vigliotti; Adam Ross; Cooney Tracy; Lamont Naeemah; DaCosta Dennis; Pope

MarvinSubject: Arbitrators for the 3020-a Panel

Good afternoon,

The Department proposes the following arbitrators for the 3020 a Panel:

1. Howard N. Beldock2. Gloria Johnson3. Leona Beane4. Regina Waynes Joseph5. Howard S. Eilen6. Thomas Rinaldo7. Stuart Pohl8. Lise Gelernter9. Harold Richman10. Sally Steinberg Brent

Thanks,

Laura



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Stone, Mac

From: Oriana Vigliotti <[email protected]>Sent: Tuesday, November 12, 2013 4:05 PMTo: Laura Brantley; Naeemah LamontCc: Claude Hersh; Jennifer Hogan; Dennis DaCosta; Marvin Pope; [email protected];

[email protected]; [email protected]: UFT Proposed Arbitrators

The UFT proposes the following arbitrators for the 3020-a Panel:

Lise Gelernter

Albert Appell

James Cashen

Stephen Bluth

Melissa Biren

Stuart Bauchner

Roger Maher

Peter Adomeit

Jay Siegel

Ruth Raisfeld

Oriana Vigliotti, Esq. New York State United Teachers Office of General Counsel 52 Broadway, 9th Floor New York, NY 10004 (212) 533-6300

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------- x BOARD OF EDUCATION OF THE CITY : SCHOOL DISTRICT OF THE CITY OF NEW : YORK, : :

Plaintiff : Index No. 451734/2013 : (IAS Part 62 : Wright, J.)

-against- : : UNITED FEDERATION OF TEACHERS, : :

Defendant. : --------------------------------------------------------------------- x

DEFENDANT UNITED FEDERATION OF TEACHERS’ REPLY BRIEF IN FURTHER SUPPORT OF MOTION TO DISMISS OR,

IN THE ALTERNATIVE, TO STAY LITIGATION PENDING ARBITRATION




i

TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii


ARGUMENT ...................................................................................................................................6

POINT I THE BOE’S CONCLUSORY ASSERTIONS OF “DELAY” ARE INSUFFICIENT TO SUPPORT A CLAIM OF BREACH ........................6

A. That Fewer Than 39 Arbitrators Have, At This Point, Accepted Positions On The Panel Is Not Evidence Of Breach................................................8

B. The BOE Has Failed To Allege Facts Demonstrating A “Delay,” Let Alone An Unreasonable Delay ............................................11

C. The BOE’s Unilateral And Premature Invocation Of the AAA Process Cannot Manufacture A Breach ............................................................15

POINT II THE BOE HAS EXPLICITLY AGREED TO ARBITRATE DISPUTES REGARDING THE SIDE LETTER AND AAA RESOLUTION PROCESS ................................................................................16

CONCLUSION ..............................................................................................................................20

ii


Page(s) CASES

511 W. 232nd Owners Corporation v Jennifer Realty Co., 98 N.Y.2d 144 (2002) ........................................................................................................10, 11

ADC Orange, Inc. v Coyote Acres, Inc., 7 N.Y.3d 484 (2006) ................................................................................................................11

Bass v Sevits, 78 A.D.2d 926 (3rd Dep’t 1980) ..............................................................................................11

Bd. of Ed. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, Inc., 30 N.Y.2d 122 (1972) ..............................................................................................................17

Consendine v. Portsville Central School District, 12 N.Y.3d 286 (2009) ....................................................................................................5, 16, 17

Fowler v Am. Lawyer Media, Inc., 306 A.D.2d 113 (1st Dep’t 2003) ..............................................................................................6

IDT Corp. v. Tyco Group, S.A.R.L., 13 N.Y.3d 209 (2009) ......................................................................................................2, 9, 10

IDT Corp. v. Tyco Group, S.A.R.L., 104 A.D.3d 170 (1st Dep’t 2012) ..............................................................................................9

La Potin v. Lang Co. Inc., 30 A.D.2d 527 (1st Dep’t 1968) .................................................................................................6

Mason v. Mason, 41 A.D.2d 607 (1st Dep’t 1973) ..............................................................................................18

Mt. Sinai Hospital v The 1998 Alexander Karten Annuity Trust, 2013 N.Y. Slip Op. 5667 (1st Dep’t 2013) ..............................................................................10

STATUTES

Education Law § 3020-a ................................................................................................4, 13, 16, 18

Education Law § 3020(4)...............................................................................................................16

Education Law § 3020(4)(a) ................................................................................................4, 16, 17


By this action, the Board of Education of the City School District of the City of New

York (“BOE”) seeks to manufacture a “delay” in agreeing to arbitrators as an excuse to abort the

mutual arbitrator selection process and prematurely invoke the AAA process. Yet, in so doing,

the documentary record shows that the BOE first attempted to coerce the United Federation of

Teachers (“UFT”) into agreeing to prematurely utilize the AAA process under threat of litigation

and now attempts to foist sole responsibility for the pace of selection of arbitrators onto the

UFT’s shoulders. But, an agreement to agree on a panel of arbitrators, like the Side Letter at

issue here, is bilateral and requires action by both sides to achieve its desired result. Put simply,

the cliché that it “takes two to tango” is apt here: Both sides need to agree to select arbitrators.

To fault the UFT for making researched choices as to which arbitrators it proposed and agreed

to, when the parties have proposed the same number of arbitrators and struck and agreed to

nearly the same number of arbitrators begs the question: if this is breach, has not the BOE also

breached the agreement? Moreover, as shown below, that the BOE recites a mantra of delay

does not in fact make it valid.

Just as the BOE could have, but did not, simply agree to the arbitrators proposed by the

UFT, so too, the UFT has a right under the Side Letter to make a reasonable study of the

proposed arbitrators, selecting those it believes to be qualified and appropriate. Yet, the BOE’s

case rest on an inexplicable (and unsupported) assertion that it is solely the UFT’s actions that

have resulted in fewer than 39 arbitrators accepting positions to date. The fact is the BOE fails

to assert facts from which it could reasonably be concluded that the UFT delayed or halted the

selection process in bad faith. To be clear, that it has taken the parties some time to work

through rounds of proposed arbitrators – even if it could be characterized as delay – alone is not

2

sufficient to state a claim for breach of the Side Letter. That is precisely what the Court of

Appeal held in IDT Corp. v. Tyco Group, S.A.R.L., 13 N.Y.3d 209 (2009), finding that a delay

there of three years (a far cry from the few weeks alleged at best) while the parties negotiated an

agreement was insufficient to sustain a claim for breach on a motion to dismiss. The BOE has

presented no authority to the contrary. Thus, mere delay – particularly of the short nature

asserted by the BOE here – is not sufficient to state a claim for breach.

Accordingly, if failure to agree to all the arbitrators proposed by the other side is

evidence of breach – as the BOE seems to argue – then the BOE is equally guilty. That, of

course, is not the measure of breach, particularly in cases such as these where the agreement

requires that the parties mutually agree to the selected arbitrators, setting no time frame within

which agreement must be reached. That the BOE would like the process to have moved more

quickly is not determinative. The BOE could have taken steps on its part to propose additional

names and select additional arbitrators, just as it suggests the UFT might have. Nonetheless, the

process has progressed both before and after the commencement of the action. To date, 22

arbitrators have accepted positions on the panel, with seven invitations outstanding, bringing the

parties closer to the 30 arbitrators the BOE stated in its September 19, 2013 letter would be

acceptable. Hardly evidence of bad faith or breach.

Contrary to the BOE’s rhetoric, the selection process has continued despite the

interruption of the BOE’s threatening letters, unilateral resort to the AAA and commencement of

this action, not because of it. Although not reflected in the Complaint, the BOE now argues that

one of the precipitating factors to its suit was the UFT’s supposed failure to immediately respond

to the lists of arbitrators exchanged on September 6, 2013. As proof of this alleged delay, the

BOE asserts that the UFT did not address the lists until October 15, 2013. That allegation,

3

however, is directly contradicted by the facts, demonstrating that it was the BOE who ignored

the lists, preferring to unilaterally skip ahead to the AAA resolution process. Indeed, after the

exchange of lists on September 6th, the process continued with the parties meeting in person on

September 16, 2013 to discuss the appropriate number of arbitrators. (See accompanying

Affirmation of Adam S. Ross, dated November 13, 2013 (“Ross Aff.”), ¶ 4). On September

19th, the BOE sent its letter – making no mention of the outstanding lists of arbitrators – and

positing an ultimatum: either the UFT agree within 24 hours to select 30 arbitrators within the

following 15 days or the BOE would resort to legal remedies. (Complaint, Ex. 2).1 There is no

basis in the Side Letter or law empowering the BOE to set such unilateral and arbitrary deadlines

and demands. In its response letter, the very next day, the UFT noted the outstanding lists and

reiterated its readiness to continue with the ongoing process. (Complaint, Ex. 3). Rather than

respond to the UFT, the BOE went directly to the AAA. (Complaint, Ex. 4). Again, the UFT

responded referencing the outstanding list and reiterating its willingness to continue with the

process. (Complaint, Ex. 5). It was only at this point that the BOE even mentioned the

outstanding lists in its subsequent letter to the AAA, and then, only to dismiss the importance of

the lists because they did not represent, in the BOE’s mind, a silver bullet solution that would

achieve a full panel in one step. (Complaint, ¶¶ 35-36, Ex. 6). The UFT again suggested that

BOE representatives contact the UFT to continue the process by email on October 4, 2013 (Ross

Aff., ¶ 6, Ex. 2). It was only after all these efforts that the UFT sent its October 15, 2013 letter

not, as the BOE posits, addressing the issue for the first time in weeks, but, again addressing an

open issue that the BOE chose to avoid (Ross Aff., ¶ 7,Ex. 3). The letters and emails speak for

themselves, contradicting the BOE’s assertions. Accordingly, the BOE’s claim for breach of

1 A copy of the Complaint with exhibits is annexed as Ex. 1 to the Affirmation of Alan M. Klinger (“Klinger Aff.”), submitted with the UFT’s moving papers as Ex. 1.

4

contract based upon the UFT’s supposed delay of a couple of weeks in responding to the

September 6 lists (from which the parties have since made selections and exchanged further

lists), should be dismissed.

However, even if a breach were plead, this action should be stayed pending resolution of

the UFT’s already-filed grievance through the parties’ grievance and arbitration process set out

in Article 21 of the parties’ collective bargaining agreement (“CBA”). (Klinger Aff., Ex. 4) The

BOE’s contorted argument for redrafting the parties’ CBA to exclude Article 21G (modifying

Education Law Section 3020-a) from the explicit and broad arbitration provision finds no

support in the law or the sole case relied upon by the BOE.

As a threshold matter, the BOE cannot dispute that Education Law § 3020(4)(a) explicitly

authorizes the parties to agree to a different disciplinary process in a collective bargaining

agreement. Nor does the BOE dispute that the parties have made just such an agreement.

Indeed, the BOE’s claim itself is telling, for it has brought a straightforward breach of contract

claim seeking to enforce the CBA, not any proceeding attempting to enforce unspecified

statutory rights. The BOE’s argument, that somehow just Article 21G of the CBA takes on the

qualities of a statute that may not be waived, is contrived at best. The language the BOE relies

on, without any citation to authority, simply states that where the parties have opted to replace

the statutory process with a contractually agreed-to process, they cannot be faulted for failing to

also comply with the statute – i.e., compliance with the contractual process is deemed to comply

with the statutory requirements – nothing more, nothing less. The language says nothing about

arbitration. In fact, even if the language did somehow link the CBA provision with the statute,

that would not create an inconsistency. Allowing the parties to arbitrate the implementation of

the contractual process in no way constitutes a “waiver” of any right under the statute that has

5

not been already waived by the BOE’s explicit agreement to Article 21G. Put simply, there is no

statutory right to be free from the contractual grievance and arbitration process. Nor is there a

statutory right to a breach of contract cause of action to enforce either the statute or the CBA.

The statute, aside from authorizing modification in a CBA, does not address the grievance and

arbitration process at all.

Moreover, even if the BOE’s argument were to be accepted, the BOE itself admits that

the matter would be arbitrable if the CBA provided an explicit agreement to arbitrate. The BOE

has little choice but to so concede because the sole case it relies upon, Consendine v. Portsville

Cent. Sch. Dist., 12 N.Y.3d 286, 294 (2009), authorizes waiver of statutory rights so long as it is

explicit. Here, Article 22 of the CBA, which was agreed to by the BOE in the same manner as

Article 21G, explicitly defines a grievance to include any “violation, misinterpretation or

inequitable application of any provisions of this Agreement.” (Article 22.A (emphasis added),

Klinger Aff., Ex. 4). “This Agreement” is plainly the CBA, which includes Article 21G. There

is no limiting language contained anywhere in the CBA or the Side Letter that would permit the

BOE to rewrite the definition of a grievance to exclude Article 21G. Indeed, as discussed infra,

in those few instances where the parties have excluded a provision from the grievance process,

they have done so explicitly. Indeed, as shown below, this is not the first time the UFT has filed

a grievance under Article 21G; prior grievances were processed by the BOE in the same manner

as other grievances, with no objection ever having been raised on the grounds now being

concocted to avoid the proper grievance and arbitration process. Likewise, at the Step 2 hearing

on the grievance in this matter, the BOE failed to raise an arbitrability argument. Thus, if the

Court does not dismiss the BOE’s claims as a whole, the action should at least be stayed pending

resolution of the parties’ contractual grievance and arbitration process.

6

ARGUMENT

POINT I THE BOE’S CONCLUSORY ASSERTIONS OF “DELAY”

ARE INSUFFICIENT TO SUPPORT A CLAIM OF BREACH

A search of the BOE’s Complaint and brief in opposition reveals a paucity of facts

alleged in support of the claimed breach. Indeed, the Complaint contains no facts to support the

conclusory allegation that the UFT engaged in “intransigent” delay. In considering a motion to

dismiss, “[v]ague and conclusory allegations,” such as those relied upon here, “are insufficient to

sustain a breach of contract cause of action.” Fowler v Am. Lawyer Media, Inc., 306 A.D.2d 113

(1st Dep’t 2003) (quoting Gordon v Dino De Laurentiis Corp., 141 A.D.2d 435, 436 (1st Dep’t

1988)). Equally insufficient are any factual allegations contradicted by documentary evidence

attached to the complaint itself. See La Potin v. Lang Co. Inc., 30 A.D.2d 527, 528 (1st Dep’t

1968). As set forth below, the BOE’s claims rest almost entirely on conclusory assertions of

delay that find no support in the documentary record.

The BOE’s basic claim is that the UFT “continually failed to agree to a full panel of 39

arbitrators…” (Complaint, ¶4). But in all the briefing before this Court, the BOE fails to explain

how the UFT “fail[ed] to agree.” (This is particularly puzzling given the parties having agreed

on which existing panel members to invite back, then agreed on 14 new arbitrators to invite and,

more recently, agreed on some 17 more arbitrators to invite.) The Side Letter and the CBA

explicitly require that both parties agree to each arbitrator. At no time did the UFT assert, nor

does the BOE claim, that the UFT declined to propose or select any additional arbitrators.

Indeed, since June 2013, when the current process began, the parties have proposed, struck from

each other’s lists and agreed to almost the exact same number of arbitrators: with the UFT

selecting 15 new arbitrators and the BOE selecting 16 new ones. (Ross Aff., ¶ 17).

7

The BOE’s asserted “failure to agree” actually reduces to a claim of brief delay “for

weeks” (BOE Br., p. 5) in responding to one of the several lists of proposed arbitrators (BOE Br.,

p. 4). 2 But even that assertion of delay stands upon few factual allegations and is belied by the

documentary evidence. First, the Complaint does not mention the September 6 exchange of lists

(or any prior exchange), except to note that, in the BOE’s view, the existence of the lists was

immaterial to the commencement of this action because, even if the parties had agreed to invite

all 20 arbitrators at the end of September, it would not have immediately resulted in selection of

all 39 arbitrators.3 This self-proclaimed entitlement to have the entire panel chosen in one

sitting, and refusal to accept that selection occurs in rounds, appears to be at the heart of the

BOE’s impatience and claim that the UFT “failed to agree.” The BOE indicates in its Complaint

that it would rather jump ahead to the AAA process than continue to work with the UFT on the

proposed lists. (See Complaint, ¶¶ 35-41) Yet, the Side Letter does not give the BOE that right.

In fact, the AAA process would similarly operate in rounds, with typically one arbitrator chosen

from each list. (Ross Aff., ¶ 5).

Thus, setting aside for now the progress made by the parties between June and September

6, 2013 – determining which arbitrators to invite back from the prior year and selecting 14 new

arbitrators to invite – the BOE’s factual allegations of “delay” focus almost entirely on the

BOE’s series of letters to the UFT and the AAA, all written within a span of some 10 days. In so

doing, the BOE asserts but a few facts: (1) there are not yet 39 arbitrators who have accepted

positions on the panel (Complaint, ¶¶18, 22; BOE Br., p. 3); (2) the UFT did not agree to the

2 References to “BOE Br.” are to the BOE’s Memorandum of Law in Opposition to the UFT’s motion to dismiss, or, in the alternative for a stay. 3 “Yet even assuming the unlikely consensus on the twenty proposed names, with only fourteen arbitrators agreed upon, rudimentary math shows that the number required for a full panel – 39 – would not be reached.” (Complaint, ¶36).

8

ultimatum contained in the BOE’s September 19 letter (that the UFT agree within 24 hours to

select 30 arbitrators in 15 days) (Complaint, ¶¶ 31-32); and (3) the UFT disputed the BOE’s

premature invocation of the AAA process, explicitly stating by letter it believed the parties

should continue the ongoing selection process (Complaint, ¶¶ 31-32). As set out below, none of

the BOE’s facts, either individually or combined in the context of the parties’ selection process,

can support a claim that the UFT’s actions rise to the level of breach.

A. That Fewer Than 39 Arbitrators Have, At This Point, Accepted Positions On The Panel Is Not Evidence Of Breach

For some inexplicable reason, the BOE asserts that, despite the process requiring mutual

consent from the parties (and ultimate consent from the invited arbitrators), it is the UFT that is

solely to blame for the absence of 39 arbitrators. There is no support for this conclusion either in

the law or in the facts alleged by the BOE. Indeed, buried in a footnote, is the BOE’s reluctant

admission that the UFT does not control how many arbitrators accept positions. Instead, the

BOE is forced to clarify what it actually accuses the UFT of:

DOE holds the UFT accountable – as should this Court – for its conduct in the selection process, which provides the only opportunity for arbitrators appointment. It is the UFT’s delay in selecting and inviting as large a pool of arbitrators as possible which has resulted in the lack of a full, 39-arbitrator panel.

(BOE Br., p. 10, n. 3). Again, the BOE does not specify what conduct by the UFT it believes

constitutes “delay.” Moreover, as explained infra, the UFT and the BOE have selected and

invited virtually the same number of arbitrators. Thus, it is not clear how the UFT interfered

with the parties ability to invite “as large a pool of arbitrators as possible.” That the BOE would

like the selection process to move more quickly does not constitute breach and cannot shift sole

responsibility to the UFT. The BOE could have agreed to more of the arbitrators proposed by

9

the UFT. It did not. Just as the UFT did, the BOE exercised its right under the Side Letter to

select those arbitrators it felt more qualified for the positions and strike those from the UFT’s list

that it did not. Indeed, the purpose of the process is to ensure a panel that both sides has

confidence in, not simply to identify 39 randomly chosen individuals. That the process has not

proceeded as fast as the BOE would like (through no small part due to the BOE’s own actions),

does not license the BOE to carve out the UFT’s rights to select (and not select) arbitrators while

continuing to reserve that right to itself. Simply not acquiescing to each demand made by the

other side – as neither the UFT nor the BOE has done here – does not support a claim for breach.

That is precisely what the Court of Appeals decision in IDT Corp. v. Tyco Group, S.A.R.L., 13

N.Y.3d 209 (2009), stands for.

In IDT Corp., the Court of Appeals affirmed the trial court’s grant of a motion to dismiss,

stating, inter alia, that the alleged failure to agree on terms within three years was not sufficient

to state a claim for breach of the agreement. Id., at 214. The IDT Corp. Court did not find

persuasive that the parties had not yet reached agreement, despite three years of effort. Here, the

alleged facts are far less compelling for the parties have reached numerous agreements (agreeing

to invite some 31 new arbitrators) and the asserted delay – to the extent it exists at all – was but a

couple of weeks. As here, the agreement in IDT Corp. required consent from both sides and did

not provide a specific time period in which agreement must be reached.

Indeed, in IDT Corp. , the plaintiff was allowed to proceed with its action only when it

amended the complaint to assert that defendant had disavowed the agreement and refused to

engage in further discussions. IDT Corp. v. Tyco Group, S.A.R.L., 104 A.D.3d 170, 176 (1st

Dep’t 2012). While, contrary to the BOE’s mischaracterization, the UFT does not assert that

complete disavowal of the agreement is the only circumstance in which a claim for breach may

10

be stated, the instant facts are categorically different, with discussions ongoing since this past

June, save for the interruption caused by the BOE’s threats. Moreover, the BOE has presented

no authority that would support its claim that the facts it alleges are sufficient to state a claim for

breach.

Nor can the BOE distinguish the decision in IDT Corp. Instead, the BOE resorts to

hyperbole, incorrectly characterizing the UFT’s position as stating that no amount of

unreasonable delay can ever give rise to a claim of breach. But, the key distinguishing factor is

the BOE’s characterization of the delay as “unreasonable.” The BOE has not alleged any facts to

support a claim of “unreasonable” delay on the part of the UFT either before the litigation

commenced or since. Indeed, as set out in detail infra at 11-15, the UFT does not believe the

facts alleged demonstrate any delay, let alone delay that could support a finding of bad faith.

Nor can the BOE’s general reference to the covenant of good faith and fair dealing rescue

its claim. (BOE Br., p. 4). In that regard, the BOE relies upon Mt. Sinai Hospital v The 1998

Alexander Karten Annuity Trust, 2013 N.Y. Slip Op. 5667 (1st Dep’t 2013), for the

unastonishing proposition that all contracts have an implied covenant of good faith and fair

dealing. However, the BOE cites no cases suggesting that the few weeks of delay in one step of

a multi-round process could constitute a violation of that covenant. In Mt. Sinai, the court

considered a delay of 12 years, in the face of explicit contract language requiring that the at-issue

claim be presented within two years. Thus, if anything, the case militates for dismissal given

how de minimis the allegations here are by comparison.

Similarly, the Court of Appeals case relied upon by Mt. Sinai for the same proposition,

511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 N.Y.2d 144 (2002), provides no

assistance to the BOE. First, that case addressed an alleged delay of 10 years, again much longer

11

than the one at issue. Second, in holding that the plaintiff met the threshold on a motion to

dismiss, the Court specifically relied upon the existence of allegations describing specific actions

taken by the defendant, demonstrating that the delay was in bad faith. Id. at 152, 154. The BOE

provides no such specific allegations here.4

B. The BOE Has Failed To Allege Facts Demonstrating A “Delay,” Let Alone An Unreasonable Delay

Turning to the actual factual allegations in the Complaint, they are few and reveal a

picture quite different from the BOE’s rhetoric. First, the Complaint skips over almost entirely

the progress made by the parties from July to early September in determining which panel-

members to invite back and agreeing on 14 new arbitrators to invite:

Beginning in July 2013, given the failure to reach a full panel in the prior years, a consequent preexisting backlog, and the anemic pace at which selections had proceeded, due to the UFT’s intransigent delay, the DOE sought to expedite the selection process, with no success.

(Complaint, ¶20).5 The Complaint provides no facts to support the characterization of

“intransigent” or any other delay. The Complaint then leaps immediately to the BOE’s

September 19th letter threatening legal actions. (Complaint, ¶21). There are no factual 4 The BOE’s reference to ADC Orange, Inc. v Coyote Acres, Inc., 7 N.Y.3d 484 (2006), and Bass v Sevits, 78 A.D.2d 926 (3d Dep’t 1980), is likewise unhelpful. Both cases are cited for the proposition that a party cannot “rely” on the failure of the counterparty to perform under the contract when the party is responsible for frustrating the counterparty’s performance. (BOE B. P. 5.) In each of those cases when the court speaks of “reliance” on the failure of a counterparty to perform, the court is referring to situations where the liable party tried to excuse its own non-performance based on the counterparty’s non-performance. See ADC Orange, Inc., 7 N.Y.3d at 488; Bass, 78 A.D.2d at 926. But the UFT has never “relied” on the BOE’s non-performance in this manner. In fact, unlike the defendants in ADC Orange Inc. and Bass, the UFT has fully performed under the contract, and has no need to try to excuse any alleged non-performance. Thus, these cases are totally inapposite to the present dispute. 5 Not only are the statements in this paragraph vague and conclusory, but they are also demonstrably wrong. The UFT has submitted documentary evidence, not challenged by the BOE, demonstrating that it was the UFT who initiated discussions regarding selection of arbitrators at the end of June 2013, with the goal of moving the process forward. (See Affirmation of Claude I. Hersh, dated October 16, 2013 (“Hersh Aff.”), ¶7, Ex. 1, annexed to the Ross Aff. as Exhibit 1). The UFT has also presented evidence that it attempted to persuade the BOE to not drop any of the arbitrators on the prior year’s panel, so as to minimize the number of new arbitrators that would be necessary. (Hersh Aff., ¶7-8, Ex. 2). Nonetheless, on July 8, the BOE advised that it would be dropping three arbitrators.

12

allegations as to any specific actions (or inactions) taken by the UFT between July and

September 19, 2013. However, the BOE has acknowledged in this proceeding that progress was

made in that period of time. Indeed, it is only since the UFT reiterated its willingness to select

arbitrators from the lists exchanged on September 6, 2013 that the BOE has pointed to those lists

as supposed evidence of delay. (BOE Br., p. 4). However, a review of the facts alleged by the

BOE leading up to the commencement of this action, and the subsequent actions taken under the

supervision of the Court, demonstrate precisely what the UFT has maintained: that the selection

process was and continues to be ongoing and that the UFT has acted in good faith and has not at

any point refused to participate in the process.

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

13

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 UFT.

September 27 (Friday): The BOE applies for a preliminary injunction against the UFT.

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

14

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 proceeding.

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.

C. The BOE’s Unilateral And Premature Invocation Of the AAA Process Cannot Manufacture A Breach

The BOE attempts to summarily dismiss the UFT’s argument that resort to the AAA

procedure was premature by calling it semantic (BOE Br., pp. 9-10). Yet, the propriety of the

BOE’s attempt to unilaterally invoke the AAA process is at the heart of the matter, requiring an

arbitrator to interpret the parties’ agreement and determine whether under the current

circumstances the contract requires the parties to resort to the AAA process (as the BOE asserts)

or not (as the UFT asserts). If the arbitrator determines that invocation of the AAA process was,

as the UFT urges, premature, then the UFT’s actions cannot form the basis of an alleged breach.

In either event that the UFT has taken the position that the contract does not require resort to a

dispute resolution process at this point is not itself evidence of breach. All it evidences is that

16

the parties disagree as to the application of a term of the CBA – precisely the situation in which

the grievance and arbitration process should operate.

POINT II THE BOE HAS EXPLICITLY AGREED TO ARBITRATE

DISPUTES REGARDING THE SIDE LETTER AND AAA RESOLUTION PROCESS

As a threshold matter, the BOE’s contrived reading of Education Law §3020(4), is

contrary to the plain text of the statute, as well as its legislative history.

The BOE’s attempts to set up a false conflict between the statutory language and the

application of the grievance and arbitration provision of the CBA. The plain language of the

statute provides that collectively bargained alternatives to the process contained in § 3020-a are

permissible “notwithstanding” the existing provisions of law. While the BOE attempts to make

much of the second part of that paragraph, that merely provides that where an alternative process

has been contractually agreed to and followed, there can be no claim that either the BOE or the

UFT failed to adhere to the statute. 6 It does not, as the BOE seems to imply, provide a

mechanism by which compliance with the contractual procedure will be determined. Nor has the

BOE invoked any such process. The BOE has commenced an action for breach of the CBA. It

has not sought to enforce any statutory rights. Indeed, there is no statutory right to a rotational

panel (of 39 , or any other number of arbitrators, mutually agreed to by the parties or otherwise).

6 “This part [of Section 3020(4)] authorizes the City of New York and the United Federation of Teachers to modify the current disciplinary procedures with an alternative process by notwithstanding provisions of law inconsistent with the bargaining agreement. This bill will only be effective upon ratifications of the contract.” (Mem of Assembly Rules Comm, 2002 NY Legis Ann at 62, annexed as Exhibit 12 to the Ross Aff.). The Memorandum in Support of the bill issued by the Office of the Mayor of the City of New York contains the same language in its summary of the amendment. (Office of Mayor of City of New York Mem in Support, Bill Jacket, L 2002, ch 93, annexed as Exhibit B to the Ross Aff.). The BOE suggests that this authorization is specifically limited to just that portion of the CBA specifically addressing the Section 3020-a process and should be read in isolation from the rest of the CBA. The legislative history does not support this type of restriction, stating “… notwithstanding provisions of law inconsistent with the bargaining agreement,” full stop. It does not say “… inconsistent with only those portions of the bargaining agreement that modify § 3020-a.” Thus, contrary to the narrow interpretation offered by the BOE, the summary suggests that the bill was intended to allow the entire CBA, including Article 22(C), to modify § 3020-a.

17

Thus, there is no inconsistency between enforcement of the contractual grievance and arbitration

process and the language of § 3020(4)(a).

The BOE’s reliance on Consendine v. Portsville Cent. Sch. Dist., 12 N.Y.3d 286, 294

(2009), fails to advance its cause. As shown below, that case merely holds that waiver of a

statutory right need be clear, a proposition neither relevant nor in dispute here. The BOE’s

citation to Consendine does not alter this conclusion. Here, there is no statutory right to be free

from the contractual grievance and arbitration process. Just the opposite, public policy favors

resolution of labor disputes through the grievance and arbitration process. See Bd. of Ed. of

Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington,

Inc., 30 N.Y.2d 122, 131 (1972) (citations omitted) (“It is of more than passing significance that

the Taylor Law explicitly vests employee organizations with the right to represent public

employees not only in connection with negotiations as to the terms and conditions of

employment but also as to ‘the administration of grievances arising thereunder.’ Indeed, it is the

declared policy of this State to encourage ‘public employers and employee organizations to agree

upon procedures for resolving disputes.’ And arbitration is, of course, part and parcel of the

administration of grievances.”). Indeed, the language relied upon by the BOE is itself a waiver

of the requirement to comply with statute, stating that compliance with the contractual

procedures obviates any required compliance with statute.

Finally, even assuming the BOE’s argument is correct, it admits that the issues at hand

would be arbitrable where “the CBA explicitly expresses the parties agreement that the

resolution of disputes under Article 21(G) shall be determined under the grievance and

arbitration process of the CBA…” (BOE Br., p. 12). But that is precisely what the BOE and

UFT have agreed to. Article 22 of the CBA explicitly defines a grievance to mean a claimed

18

“violation, misinterpretation or inequitable application of any provisions of this Agreement.”

(Article 22, Klinger Aff., Ex. 1). The term “this Agreement” plainly refers to the CBA, which

contains the AAA dispute resolution provision the BOE is attempting to enforce. That portion of

the CBA, which provides for a 20 arbitrator panel, is modified by the Side Letter, which, because

the BOE wishes to invoke the AAA process, it argues is part of the CBA. The BOE never

attempts to explain why it believes it has “explicitly” agreed to Article 21G of the CBA

(containing the AAA process), but somehow not Article 22, making the grievance process

applicable to the entire agreement. Article 21G of the CBA – which the BOE attempts to

enforce – is plainly part of “this Agreement.” The BOE explicitly agreed to Article 22

(grievance and arbitration), just as it explicitly agreed to Article 21G (modifying the § 3020-a

process). Indeed, in those few instances where the parties intended to exclude a contractual right

from the grievance process, they did so explicitly. (See e.g., Article 21, Due Process and Review

Procedures, Subsection A(5) (“Members may not grieve material in file, except…); Article 8,

Education Reform, Subsection B (“Issues arising under this provision are not subject to the

grievance and arbitration procedures…)).

Accordingly, there is no basis on which the BOE can pick and choose which portion of

the CBA it will and will not adhere to. Contrary to the BOE’s assertion that the UFT is relying

on “statutory silence” (BOE Br., p. 12) in support of its claim, the UFT relies on explicit

contractual language agreed to by the BOE. Thus, even if the Court were to accept the BOE’s

tortured reading of the statute and the Consendine case as requiring some explicit statement that

the BOE agreed to arbitrate dispute regarding the implementation of Article 21G, the result

would be the same – the matter is properly subject to the grievance and arbitration process.

19

This result would be consistent with the parties’ past practice. The UFT has grieved

other violations of Article 21G. In each instance, the Chancellor’s representative at Step 2 of the

grievance process determined the issue on the merits, never once indicating that claims under

Article 21G were not arbitrable. (See Ross Aff., ¶¶ 21-25, Exs. 14-17). Indeed, at the Step 2

hearing on the underlying grievance in this matter, the BOE argued the merits of the grievance

and did not assert an arbitrability challenge. (See Ross Aff., ¶ 26). The BOE has articulated no

basis on which it may selectively carve Article 21G out of the CBA, let alone portions of Article

21G. Accordingly, this grievance should be treated no differently than others and processed in

the regular manner through the grievance and arbitration machinery.

20

CONCLUSION

For the reasons set forth herein and in the UFT’s moving papers, the UFT respectfully

requests that this Court issue an order dismissing this action in its entirety and for such other and

further relief as the Court deems just and proper, or, in the alternative, stay the instant action

pending arbitration of the underlying matter and issue an order compelling the BOE to arbitrate

pursuant to the Collective Bargaining Agreement between the parties.

Dated: New York, New York November 13, 2013

Respectfully submitted, STROOCK & STROOCK & LAVAN LLP By: /s/ Alan M. Klinger Alan M. Klinger, Esq. Dina Kolker, Esq. 180 Maiden Lane New York, New York 10038 Of Counsel: (212) 806-5400 Beth A. Norton R. Mac Stone Counsel for Defendant UFT

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