ARTICLE TWENTY-TWO
May 24, 2006 9:55 AM
C. Arbitration
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. Grievances involving the exercise of Board discretion under any term of this Agreement may be submitted to arbitration to determine whether the provision was disregarded or applied in a discriminatory or arbitrary or capricious manner so as to constitute an abuse of discretion, namely: whether the challenged judgment was based upon facts which justifiably could lead to the conclusion as opposed to merely capricious or whimsical preferences, or the absence of supporting factual reasons.
A grievance may not be submitted to an arbitrator unless a decision has been rendered by the Chancellor under the grievance procedure, except as provided in Section B6b of this Article, and except in cases where, upon expiration of the 20-day time limit for decision the Union filed notice with the Chancellor of intention to submit the grievance to arbitration and no decision was issued by the Chancellor within five school days after receipt of such notice.
The proceeding shall be initiated by the Union filing with the Board a notice of arbitration. The notice shall be filed within 15 school days after receipt of the decision of the Chancellor under the grievance procedure or, where no decision has been issued in the circumstance described above, three days following the expiration of the five school day period provided above. The notice shall include a brief statement setting forth precisely the issue to be decided by the arbitrator and the specific provision of the Agreement involved. The parties shall jointly schedule the arbitration hearings.
A panel of seven arbitrators shall be designated by mutual agreement of the parties to serve for any case or cases submitted to them in accordance with their ability to promptly hear and determine the case or cases submitted;
Arbitrators shall serve one year terms which extend from September 1 through August 31 of the following year. Arbitrators who are selected after September 1 shall hear cases for a minimum of one year, with a term ending on August 31;
Arbitrators will be continued for additional one year terms, unless either party discontinues the services of any of the panel arbitrators by notification to the other party by May 15 that such arbitrators shall not be selected for an additional term. Arbitrators not selected by the parties to serve an additional term will be notified jointly by the parties;
Arbitrators who are not continued for an additional term shall finish any case they have begun hearing;
If a panel arbitrator(s) is not continued for an additional one year term, a replacement(s) shall be selected to serve on the panel by the mutual agreement of the parties. Should agreement not be reached in sufficient time to ensure that the replacement arbitrator(s) commences service on September 1, the parties shall maintain the same number of hearing dates which would have existed if the replacement arbitrator(s) could have provided dates starting in September. The parties further agree to schedule the same number of dates, regardless of the number of arbitrators on the panel, normally scheduled in a school year. This maintenance of service shall be accomplished in the following manner:
a. First, by requesting additional hearing dates from the panel arbitrators; and
b. If necessary, by requesting hearing dates from arbitrators previously agreed upon for this purpose; and
c. If necessary, by requesting that the American Arbitration Association provide simultaneously to each party an identical list of names of persons chosen from the Panel of Labor Arbitrators, as outlined in Rule 12 of the A.A.A. Labor Arbitration Rules (as amended and in effect January 1, 1992).
The parties agree to enter into a stipulation of facts whenever possible in advance of the hearing.
The parties seek the most expeditious decisions in arbitrations and will not normally file briefs or order transcripts. If either or both parties order transcripts, it shall be on an expedited basis. The parties may agree to file post-hearing briefs. However, if a party unilaterally files a brief, it shall be filed within five working days of the hearing or receipt of the transcript, if one is ordered. The other party shall have the right to file a reply brief within five working days of receipt of the brief.
The voluntary labor arbitration rules of the American Arbitration Association shall apply to the proceedings insofar as they relate to the hearings and fees and expenses.
The arbitrator shall issue his/her decision not later than 30 days from the date of the closing of the hearings or, if oral hearings have been waived, then from the date of transmitting the final statements and proofs to the arbitrator. The decision shall be in writing and shall set forth the arbitrator’s opinion and conclusions on the issues submitted. The arbitrator shall limit his/her decision strictly to the application and interpretation of the provisions of this Agreement and he/she shall be without power or authority to make any decision:
1. Contrary to, or inconsistent with, or modifying or varying in any way, the terms of this Agreement or of applicable law or rules or regulations having the force and effect of law;
2. Involving Board discretion under the provisions of this Agreement, under Board by-laws, or under applicable law, except that the arbitrator may decide in a particular case whether the provision was disregarded or applied in a discriminatory or arbitrary or capricious manner so as to constitute an abuse of discretion, namely whether the challenged judgment was based upon facts which justifiably could lead to the conclusion as opposed to merely capricious or whimsical preferences or the absence of supporting factual reasons.
3. Limiting or interfering in any way with the powers, duties and responsibilities of the Board under its by-laws, applicable law, and rules and regulations having the force and effect of law.
The decision of the arbitrator, if made in accordance with his/her jurisdiction and authority under this Agreement, will be accepted as final by the parties to the dispute and both will abide by it.
The arbitrator may fashion an appropriate remedy where he/she finds a violation of this Agreement. To the extent permitted by law, an appropriate remedy may include back pay. The arbitrator shall have no authority to grant a money award as a penalty for a violation of this Agreement except as a penalty is expressly provided for in this Agreement.
The arbitrator’s fee will be shared equally by the parties to the dispute.
The Board agrees that it will apply to all substantially similar situations the decision of an arbitrator sustaining a grievance and the Union agrees that it will not bring or continue, and that it will not represent any employee in, any grievance which is substantially similar to a grievance denied by the decision of an arbitrator.
D. General Provisions as to Grievances and Arbitration
1. The filing or pendency of any grievance under the provisions of this Article shall in no way operate to impede, delay or interfere with the right of the Board to take the action complained of, subject, however, to the final decision on the grievance.
2. Nothing contained in this Article or elsewhere in this Agreement shall be construed to permit the Union to present or process a grievance not involving the application or interpretation of the terms of this Agreement in behalf of any employee without his/her consent.
3. Nothing contained in this Article or elsewhere in this Agreement shall be construed to deny to any employee his/her rights under Section 15 of the New York Civil Rights Law or under the State Education Law or under applicable Civil Service Laws and Regulations.
4. (a) Procedural arbitrability objections based upon the asserted:
Untimeliness of a grievance or appeal, or failure to follow or properly adhere to contractual grievance procedures will, normally, be raised at the Chancellor’s level. In instances where the employer could not reasonably have been able to raise such a claim at the Chancellor’s level, but intends to raise such a claim at the arbitration level, for the first time, the employer shall communicate to the Union within one week prior to the scheduled hearing of such intent.
(b) These guidelines are not intended to be applied to preclude a party from raising an arbitrability objection at a hearing where such preclusion would appear to be unfair or substantially prejudicial to a party’s interest in the ultimate outcome of a case.
(c) Nothing contained herein shall be construed as a waiver of any substantive arbitrability objection or to preclude any other resort to judicial proceedings as provided by law.
E. Expedited Arbitration Procedure for the Lead Teacher Applicant Pool
The purpose of this procedure is to carry out the intent of the parties set forth in Article 11 IV A10 to resolve promptly all disputes regarding the Applicant Pool of Lead Teachers subject to expedited arbitration.
To the extent possible, each expedited arbitration shall be completed by the last day of June of the school year in which the application was made. The parties to the arbitration shall make all necessary reasonable efforts to complete the procedure by the deadline, including shortening the time frames if necessary.
1. Every Regional Personnel Committee that rejects an application for inclusion in the pool shall notify the rejected candidate of the right to challenge the decision according to this procedure.
2. The Appellant — a candidate who is not selected by the Regional Personnel Committee — shall initiate the challenge by filing a written request for review with the United Federation of Teachers Coordinator. The request must be filed within five calendar days (not counting weekends and holidays) after the Appellant receives the Personnel Committee’s decision and right-to-challenge notice. The Appellant is limited to filing no more than three review requests.
3. The request shall include the name, address and phone number of the Appellant, the Regional Pool applied for, and a statement that the review of the Regional Personnel Committee's decision is requested. A form for this purpose shall be available from the Board, the Union and the School Personnel Committee.
4. Upon receiving the request, the UFT Coordinator shall notify the Regional Personnel Committee and the arbitrator that a request for review has been filed. The Regional Personnel Committee shall immediately respond to the UFT Coordinator with the following information: the names of the successful candidates; the qualifications for the position; and the reasons it rejected the Appellant. The UFT Coordinator shall then send that information to the Appellant.
5. The Chancellor and the UFT President or their designees shall jointly select an arbitrator (or arbitrators) to arbitrate these cases. The Board and the Union shall share the arbitrators’ fees equally.
6. The parties to the proceeding shall be the Regional Personnel Committee and the Appellant(s). If there is more than one Appellant who was rejected for the same Regional Pool, the arbitrator shall consolidate and hear together their requests for review.
7. The arbitrator shall schedule the hearing to start not later than seven (7) days (not counting weekends and holidays) after the UFT Coordinator received the request for review.
8. In order to develop a full and complete basis for a decision, the arbitrator shall inquire fully into all matters in issue. The Appellant(s) should be prepared to state the basis of the challenge and may do so at any time during the hearing. The Regional Personnel Committee should be prepared to support the basis for its decision.
9. The arbitrator shall issue a written, signed award within five (5) days of the close of the hearing. If the arbitrator sees the need for an opinion, it shall be in summary form.
10. If the arbitrator sustains the challenge, the Appellant shall be included in the Regional Pool applied for.
11. The arbitrator’s power and authority under this procedure shall be only to resolve an Appellant’s challenge to the decision of the Regional Personnel Committee. The arbitrator’s decision shall be limited strictly to the application and interpretation of the Plan’s applicable provisions. Other grievances or complaints arising in a school shall be resolved through the procedures appropriate to them.
12. The parties shall accept as final the arbitrator’s award and abide by it if it is made in accordance with the jurisdiction and authority granted under this procedure.
13. Regarding the hearings, fees and expenses, the proceedings shall follow the Expedited Labor Arbitration Procedures of the American Arbitration Association as amended and effective on September 1, 1993, as long as they do not conflict with the procedures described above.
F. Arbitrations Pursuant to the Expedited Reorganization Grievance Procedure
Arbitrations filed pursuant to the Expedited Reorganization Grievance Procedure in B5 above shall be processed as follows:
1. Each Arbitrator shall hear up to five (5) reorganization grievances in a day. Where possible, grievances from the same school and/or borough shall be scheduled on the same day.
2. The arbitration shall be informal and proceed in the following manner:
a. The parties shall provide the Arbitrator at the beginning of each case all relevant documents, such as, but not limited to: 1) Postings; 2) Preference sheets; 3) Resumes; and 4) Seniority lists.
b. The Grievant and the Principal, or his or her designee, must be in attendance. Each side shall have thirty (30) minutes to present their respective cases. The Arbitrator may extend this time limit. Only disputed facts shall be presented to the Arbitrator.
c. Witnesses for the Union and the Board shall be limited to discuss only those facts in dispute.
d. In order to develop a full and complete basis for a decision, the Arbitrator shall inquire fully into all matters at issue.
3. Each Arbitrator shall be given precedential reorganization decisions with the agreed upon reorganization standards. No other decisions shall be presented except relevant regular panel member decisions decided subsequent to July 1, 2001.
4. At any time prior to issuance of an award, either party may decide that a case may have precedential value and shall be referred for an arbitration hearing pursuant to Article 22C, and the rules applicable to that procedure shall apply. The next panel member in the established rotation shall be assigned the case.
5. The Arbitrator shall issue an Award within five (5) school days of the arbitration hearing. Such Award may be transmitted by facsimile directly to the parties, including the Board’s Office of Labor Relations and Collective Bargaining and the UFT’s Grievance/Arbitration Department. Arbitrators shall not issue written Opinions unless jointly requested by the parties. The Award is non-precedential unless the parties jointly request a formal written Opinion.
6. All sustained Awards shall be implemented within five (5) school days of issuance, unless otherwise specified by the Award, except that decisions rendered on or after October 10th shall be implemented no later than the next reorganization.
7. The Arbitrator shall retain jurisdiction until the next reorganization unless otherwise specified in the Award.
8. If an Arbitrator is unable to complete his or her assignment before issuing his or her Award, the American Arbitration Association shall appoint the next panel member in the established rotation.
G. Arbitrations Pursuant to the Expedited Procedure for Class Size and Group Size Grievances Arbitrations filed pursuant to the Expedited Procedure for Class Size and Group Size Grievances in B6 above shall be processed as follows:
1. Each arbitrator shall hear up to five (5) schools’ class size and/or group size cases in a day. Where possible, schools within the same superintendency shall be scheduled on the same day.
2. The arbitration hearing shall be expedited in the following manner:
a. The Union shall provide the Arbitrator with a standardized form, agreed upon by the parties, with the following agreed upon information at the beginning of each case:
(1). Name of Teacher (for identification purposes only)
(2). School
(3). District
(4). Classes/Groups which are oversized
(5). Registers of each class/group on the grade or subject/course name, as applicable, being grieved
(6). Prior grievance history
b. The UFT District Representative and Superintendent, or their designee, shall each have thirty (30) minutes to present their respective cases. The Arbitrator may extend this time limit. Only disputed facts shall be presented to the Arbitrator.
c. Witnesses for the Union and the Board shall be limited to discuss only those facts which are in dispute.
d. In order to develop a full and complete basis for a decision, the Arbitrator shall inquire fully into all matters at issue.
e. Each Arbitrator shall be given precedential class/group size decisions with the agreed upon class/group size decision summaries. No other decisions shall be presented except relevant regular panel member decisions decided subsequent to July 1, 2001.
f. At any time prior to issuance of an award, either party may decide that a case may have precedential value and shall be referred for an arbitration hearing pursuant to Article 22C, and the rules applicable to that procedure shall apply. The next panel member in the established rotation shall be assigned the case.
g. The Arbitrator shall issue an Award within five (5) school days of the arbitration hearing. Such Award shall be transmitted by facsimile directly to the UFT District Representative, the Superintendent(s), the UFT Grievance/Arbitration Department and the Board’s Office of Labor Relations and Collective Bargaining. The Award shall include the following information:
(1) Sustained or denied.
(2) If sustained, the guidelines for compliance (e.g., equalization, new class or monetary penalty).
(3) If denied, the basis for the denial.
Arbitrators shall not issue written Opinions unless jointly requested by the parties. The Award is non-precedential unless the parties jointly request a formal written Opinion.
h. All sustained Awards shall be implemented within five (5) school days of issuance. No class that ultimately complies with the contractual maximum class size limitations shall constitute an Article 7M3 class size exception, except that said Awards can be used for grievance history background.
i. The Arbitrator shall retain jurisdiction over his or her decision. If a sustained Award is not implemented within five (5) school days, the Arbitrator shall convene a conference between the Board’s Office of Labor Relations and Collective Bargaining and the UFT’s Grievance/Arbitration Department within five (5) school days, but no earlier than October 1st in the case of class size grievances.
j. If the Board asserts that it cannot comply with the Arbitrator’s Award, it must set forth a plan of action to remedy the class size or group size violation. If the Board has acted in good faith, and the plan of action is not unreasonable, it will be accepted by the Arbitrator.
k. If the Arbitrator concludes that the Board’s plan of action is not appropriate, he or she shall be empowered, on a non-precedential basis, to issue a Supplemental Award within five (5) school days, as follows: For elementary schools, the school may be directed to add one additional paraprofessional for every two oversized classes in a grade, or at the school’s option, one teacher for every four classes, with a minimum of one hour teacher coverage per oversize class. For all other school organizations, the school may be directed to implement a comparable remedy appropriate to the level. In the case of group size awards, the Arbitrator may impose a monetary penalty.
