NO, 4545 P. 2 C.t.-\ 7(/~/D[

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1 ,. JUL, 1J, : :;6AM NO, 4545 P. 2 C.t.-\ 7(/~/D[ AMERICAN ARBITRATION ASSOCIATION In the Matter of Arbitration Between ---~ ~ ~ UNITED FEDERATION OF TEACHERS, LOCAL 2 AMERICAN FEDERATION OF TEACHERS, AFL-CIO : : "Union ll and THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK OPINION AND AWARD Case No "Department/Board rr : : : This case arose when the Department placed a letter in the personnel file of Gail Friedman ("Grievant"). The Union seeks removal of the letter on procedural grounds. The Department contends that the grievance is not arbitrable, that the grievance is moot I and that the grievance should be dismissed in its entirety. The arbitration hearing in this ~atter took place in New York City. The Union was represented by Diane Mazzola and Ellen Gallinprocida.: Russell Platzek and Robert Waters, Esquires, represented the Department. Both parties filed post-hearing briefs.

2 JUL :59AM NO P. 23 OPINION Insofar as the arbitrability issue in this case is concerned, the critical question is this: What is the scope of the sentence in Paragraph 5 of Article 21A of the CBA which states that U(m)embers may not grieve material in file"? The Department contends that this sentence applies to the entirety of Article 21A, while the Union asserts that it applies only to the right of members to grieve the inaccuracy or unfairness of letters, which was previously codified in Paragraph 5 of the CBA. After careful consideration of the extensive arguments of both parties, as set forth above, I conclude that the Union's position is correct. Simply stated, the evidence does not establish that the parties ever mutually intended and understood when negotiating the CBA that henceforth all of the procedural protections set forth in Article 21A would be reduced to unenforceable guidelines. It is true that the Contract language itself does not clearly and unambiguously codify the Union's right to grieve and arbitrate alleged procedural violations of Article 21A. As argued by the Department, such an intent would have been more clearly expressed if the parties had included in the Contract language expressly stating something to the effect of hmembers may not grieve the alleged unfairness or inaccuracy of letters in the file, but may grieve alleged procedural violations of Article 21A." It is also true, however, that if the parties had intended to extinguish the right of the Union to enforce the procedural requirements set forth 22

3 JU L, : 59.4M P. 2~ in Article 21A, they could have simply removed those protections from the Contract or included language specifying that they remained in the Contract only as unenforceable guidelines. Given the imprecision of the Contract language that the parties did agree upon, it is necessary to examine bargaining history to see what the parties we~e attempting to achieve by the changes they made in Article 2lA. In this regard, it is clear that the Department was seeking relief from the burden of defending letter in file matters in multiple forums. This was the clear testimony presented by Weisberg at both the fact-finding hearing and at this arbitration proceeding. That this was the Department' s intent was also established through the testimony of Gerstl and Weingarten at the arbitration hearing. The evidence is clear and undisputed that the vast rnajority of the letter in file cases which the Department was being required to defend under the CBA involved the substance of the letters, i.e. their alleged inaccuracy or unfairness, rather than alleged violations of the procedural requirements set forth in Paragraphs 1-4 of Article 2lA. Indeed, as noted by the Union, the testimony of Solomon established that during a one year period only one of 449 letter in file grievances alleged a violation of the time limits set forth in Paragraph 1 of Article 21A. In this context, the Union argues convincingly that it never had reason to understand that the Department was even seeking to extinguish its right to enforce the procedural protections contained in Article 21A. weingarten credibly testified that the 23

4 JUL.i il:59am N0 ~. ~_.- " 2i:; 4 r- ) 'T) r..i procedural protections contained in Paragraphs 1-4 were never even raised as a topic for negotiations when the parties were making proposals concerning changes in the CBA. Moreover, the Union correctly notes that when the Department made its first proposal to the Union for a successor to the CBA, a Hbare bones" Contract of only eight pages in length, it still included in that proposal procedural protections for letters in file, including the three month time limitation which had been, and ulti~ately would continue to be, contained in Paragraph 1 of Article 21A. Nor was there any clear indication from the Department during bargaining, or during the fact finding process, or when agreeing to the MOA, or during the process of reconciling the MOA with the Contract terms, that it was leaving the procedural protections in Article 21A with the understanding that they would not be enforceable. While the Department argues that this intent was made clear when the parties agreed to eliminate from Article 22C of the CBA the specific language pertaining to letter in file grievances, I find this argument unpersuasive. Although it is clear that the parties did agree to extipguish any special treatment for grievances alleging violation of Article 21A, it does not follow that they intended to eliminate the right of the Union to grieve and arbitrate alleged procedural violations of Article 21A through the normal Article 22C grievance and arbitration procedures. In this regard, al1egqd procedural violations of Article 21A still meet the definition of a grievance containad in Article 22, i.e. 24

5 JUL, : 59AM NO,4545-P, 26 "... a complaint by an employee in the bargaining unit._.that there has been as to him/her a violation, misinterpretation or inequitable application of any of the provisions of this Agreelnent... ". Such matters also continue to fall within the Article 22C standard of what may be submitted by the Union to an arbitrator i.e., a dispute which was not resolved at the level of the Chancellor under the grievance procedure that involves the application or interpretation of the Agreement. It is entirely logical that the parties would eliminate the special expedited handling of lett~r in file grievances in the CBA while retaining the right of the Union to arbitrate grievances alleging violation of the procedural safeguards specified in Article 21A. Under the CBA, when members had the right to grieve the substance of letters in file, there were hundreds of grievances filed annually alleging a violation of Article 21A. The vast majority of those grievances, however, alleged a violation of Paragraph 5, specifically that the content of the letter was unfair or inaccurate. Given that in the CBA the parties agreed to eliminate the right of members to grieve such matters, there was every reason to believe that only a handful of grievances alleging violation of Article 21A would be filed under the CBA. In these circumstances, special procedures would no longer be necessary. An interpretation of Article 21A which retains for the Union the right to grieve and arbitrate dlleged violations of the procedural safeguards set forth in Article 21A does not, as the 25

6 ,I U-L : 59 AM NO.4545-P. 27' DepartlUent fears, deprive it of the bargain it made during the negotiations for the CBA. As noted above, this interpretation does nothing to interfere with the relief the Department has obtained as a result of members no longer having the right to grieve over the substance of a letter in the file. While the Department did not achieve a complete blanket prohibition against all Article 21A grievances, it did achieve a prohibition. against the vast majority of such grievances. Moreover, it strikes me that the burden upon the Department to defend the few procedural grievances that remain will not normally require the great expenditure of personnel and time that were previously necessary under the contract to defend claims that the substance of the letters were inaccurate or unfair. While the Department contends that under its interpretation of Article 21A members would still retain a number of procedural safeguards, the fact remains that were I to find the instant grievance to be not arbitrable none of those safeguards would be enforceable under the grievance and arbitration procedure. All would be reduced to mere guidelines. Indeed, the Union correctly notes that a finding of non-arbitrability in the instant case would even have a direct impact upon Paragraph 5 of Article 21A, as set forth in the CBA. In this regard, the new Paragraph 5 provides that if disciplinary charges do not follow from a letter in the file, the letter shall be removed from the file three years from the date it was originally placed in the file. If the Unron lacks authority to enforce the three month limitation contained in 26

7 JUL. ' :00PM NO P. 28~---- Paragraph ~ of Article 21A for placing a letter into the file, it follows that the three year requirement for removal of the letter from the file is also reduced to a mere guideline. For all these reasons, I agree with the Union that the instant grievance, which alleges a violation of Article 21A1, is arbitrable. While I agree with the Department that I cannot create a contractual right where none exists based upon my own sense of equity or fairness, which is essentially the holding of the arbitration Awards cited by the Department', I am here enforcing a right which was previously created by the parties, and retained by the parties, in Article 21A of the CBA. I tnerefore turn to the Department's contention that the grievance is moot, and should be dismissed on that basis. I quickly reject this conterttion. While the Department emphasizes that the Grievant's letter will be considered as part of the 3020-a process, that does not make this grievance moot. As a remedy for this grievance, the union seeks removal of the letter from the Grievant's personnel file. It is clear, however, that no matter what happens in the 3020-a proceeding, there is no expectation that the neutral will order the letter removed from the Grievant's file. Rather, 1 1) United Feder~tion of Teachers and Board of Education of the city of New York, AAA File No (Hill, 1976); 2) Board of Education of the city School District of the city of New Xork and ~i-lingual Teacbers in School and Community Relations Chapter, United Federation of Teachers, Local 2, AAA File No (RUbin, 1976); 3) United Federation of Teachers, Local 2 and Board of Education of the city of New York, AAA File No (Stockman, 1976) 27

8 JUL :00PM NO, t, considelation of the letter during the 3020-a proceeding will be primarily, if not entirely, about the substance of the letter. Although the neutral may also consider the timeliness of the letter, that will only be for the purposes of determining what weight to afford the substance of the letter. In these circumstances, the grievance is not moot. Rather, it has a legitimate independent purpose to seek a remedy for the alleged untimeliness of the letter, namely removal of the letter from the Grievant's file. While the 3020-a process may to some extent overlap with the grievance process, the two processes do not serve identical purposes. This brings me to the question of the merits of the grievance. I need not ponder this question long. The evidence is clear that the purported incident in question occurred on or about October 6, 2006, yet the Principal did not reduce his findings to a letter until January 26, Thus, the letter was not placed into the Grievant's file within three months of the occurrence of the incident in question. Placement of the letter into the Grievant's file after the three month period expired was a clear violation of the last sentence, of Article 21Al, which specifies that /I an incident which has not been reduced to writing within three months of its occurrence...may not later be added to the file." The final question before me concerns the remedy for this Contract violation. This again requires little analysis. The proper remedy is, as requested by the Union, that the letter be removed from the Grievant's file. Given that there never was any 28

9 jill. 1S '\ 2: OOPM NO. 4S45_? 3o right to place the letter in the file in the first place, due to its untimeliness, it obviously cannot be kept in the file. In closing, I stress that I have sustained the grievance and granted the remedy requested by the Union strictly for procedural reasons. My determination in no way reflects upon the substance of the January 26 letter, and is in no way intended to influence the outcome of the Grievant's 3020-a proceeding, of which I have no knowledge. 29

10 JU ' 1~ 2 n O p L.,,1. \) U 12: OOPM ~_. NO _p. 3i _ AWARD 1. The grievance is arbitrable. 2. The grievance is not moot. 3. The grievance is sustained. As a remedy, the Department shall remove from the Grievant's personnel file the letter dated January 26, 2007, which refers to a purported incident of October 6, signed this day of July, ~~- SCOTT E. BUCHHEIT, ARBITRATOR State of New Jersey county of Camden \Jri/~k'~ ~~~~expires February 9,