What would you do if you knew that your Union and employer would join together to terminate your employment using deceitful procedures if you had to take a sick leave, a religious holiday, or you applied for a medical or religious exemption from getting the COVID vaccine?
Employees of the NYC Department of Education, all titles and all levels of seniority (although the farther down you get on the ladder, the more people are pushed out – it helps to know the “right” people) are asking these questions right now. We have seen the disaster caused by the political dominance in New York State which tramples rights, facts, and laws in a random and arbitrary manner:
The 3020-a Arbitration Newswire: Digging Up The Garbage On the UFT/DOE Partnership of Harm For Charged DOE Employees
We are in a historical moment, when members of the UFT, CSA, DC37, Local 234, and other groups have seen the laws of the State and the terms of employment in their contracts shredded, ignored, or hidden so nonsensical procedures are put into place without proper negotiation or member vote. In other words, the COVID Mandate and its’ prohibition against any exemptions are unlawful and deny Constitutional rights.
I have been reading “First Amendment Law” by Jerome A. Barron and C. Thomas Dienes and found this:
“Justice Oliver Wendell Holmes remarked when he was a judge on the Massachusetts Supreme Judicial Court: “[A police officer] may have a constitutional right to talk politics but he has no constitutional right to be a policeman”. McAuliffe v. Mayor of New Bedford, 29 N.E. 517 (Mass. Sup. Jud. Ct. 1892). For Holmes, it followed that “the servant cannot complain as he takes the employment on the terms on which they are offered to him.”
Thus, government employment is a privilege, not a right, but this doctrine has been, the authors explain, largely rejected. in Perry v Sindermann, 408 U.S. 593 (1972) Justice Stewart wrote, “…even though a person has no single ‘right to a valuable governmental benefit…It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests-especially his interest in freedom of speech”.
Indeed, we should consider the whistleblower a valuable adjunct to the public’s right to know what the government is doing and how public funds are allocated. Transparency matters.
Still, the Government must be able to do the public’s business for which they were put into place (by election, in the U.S.), and this is the fundamental issue in Pickering v Board of Education, 391 U.S. 563 (1968): “The problem, in any case, is to arrive at a balance between the interests of the [government employee] as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” (Barron and Dienes, p. 357)
Barron and Dienes continue, on DEFINING PUBLIC INTEREST SPEECH:
” When the government undertakes to discipline its employees for expressive activities critical of government policy, the Court asks if the employees’ speech involves a matter of public concern or is instead a private matter. In the latter case, the Court will usually defer to the government’s personnel decision….a hands-off policy. If the speech is determined to be a matter of public interest, the Court proceeds to the second part of the test, which is a balancing determination.”
In Pickering, where a teacher had been dismissed after writing a letter sent to a newspaper critical about the school board’s funding policies, the Court applied a balancing test and decided that the criticism involved no impairment of the ability of superiors to maintain discipline nor did it pose any threat of disharmony among co-workers, and thus no grounds for dismissal.
Additionally, even though some of the statements made by the teacher were found to be false, the teacher should be protected as part of the balancing test. The Court defined Pickering’s action as involving Pickering the citizen rather than Pickering the government employee and invoked the defamation standard of the New York Times co. v Sullivan, 376 U.S. 254 (1964).
Thus, the plaintiff (person filing a lawsuit) in a case involving the First Amendment must establish he/she was disciplined because of the speech. the probable response of the government would be to show that it would have taken the disciplinary action even apart from the employee’s expressive activities. The Pickering balancing test is to be used only for speech involving matters of public concern, not matters of purely personal interest.
The current fight in New York State for religious or medical exemptions to the COVID mandate centers around the “interests” of the State versus the “interests” of the individual. See the invitation to Martin Scheinman’s fundraiser in 2013 that I received, and I posted at the top of this post and on my blog NYC Rubber Room Reporter:
From Betsy Combier:
The pandemic has caused chaos in education circles and brought people with opposing views to the brink of using defamation, gaslighting, cancel culture techniques, etc. to get their views on whether or not to wear masks, get vaccinated and/or stay at home to be the one opinion held by the greatest number.
I, for one, don’t fall for this kind of bullying, and I support the many people who are fighting for their rights to oppose what the State and City of New York politicians are saying is the “public interest”. They are defining this term.
Martin Scheinman in 2005, de Blasio in NYC December 23rd 2013; Luiz C. Ribeiro, Theodore Parisienne
What is shocking is the position of Beth Norton, General Counsel for the UFT. She emailed members who were ordered by the DOE to be vaxxed in September or face termination that she would fight that, because tenured members needed to go through a 3020-a before their tenured positions and salaries were changed/taken away. On February 8, 2022, she submitted an AFFIRMATION Then, in March, she answered as follows to a member who was denied a valid, documented religious exemption but whose daughter received the RE:
“The religious exemption appeals were reviewed by a citywide panel and each application was evaluated independently…….there is, unfortunately, no further contractual recourse.”
As a result, thousands of NYC employees are suffering because of their political authority and were fired on or about February 11, 2022 without being heard on why they did not/could not get the vaccine, or why some got a religious exemption and others did not.
This is from the UFT September 10, 2022:
Arbitration finding also calls for unpaid leaves with health coverage, along with severance arrangements
An independent arbitrator has ruled that New York City teachers with certain documented medical conditions must be offered non-classroom assignments. Other staffers reluctant to take the vaccine must be offered either an unpaid leave that maintains their health coverage, or a severance package.
UFT President Michael Mulgrew said, “As a group, teachers have overwhelmingly supported the vaccine, but we have members with medical conditions or other reasons for declining vaccination. After our demand for independent arbitration, the city backed off its initial position that all unvaccinated personnel be removed from payroll, and will offer out-of-classroom work for those with certified medical or other conditions.”
“The city has also agreed — based on the arbitrator’s determination — to create both a leave process and a severance agreement for other teachers who feel that they cannot comply with the vaccination mandate.”
The teacher vaccine mandate is scheduled to go into effect on Sept. 27, 2021. Classes begin Monday, Sept. 13.
The UFT estimates that more than 80% of teachers have already been vaccinated, either through the union’s own vaccination program or through other city and state initiatives.
Under the terms of the arbitrator’s ruling, teachers and other staff with certain medical conditions that prevent them from being vaccinated, either temporarily or permanently, including certain cancer treatments, must be offered educational and administrative work in non-classroom buildings.
In cases where teachers seek exemptions for medical conditions not on the list, independent arbitrators will decide if the exemption is appropriate.
Teachers who have been vaccinated but whose immune systems are suppressed must also be offered office or remote assignments as long as their medical conditions last.
Exemption requests shall be considered for recognized and established religious organizations and not where the objection is personal, political, or philosophical in nature. Applications for religious exemptions must be documented in writing by clergy or a religious official. Appeals of religious exemption denials will be heard by the same independent arbitrators ruling on medical exemption appeals.
Teachers who are not vaccinated but for whom medical exemptions are unavailable must be offered unpaid leaves that will last until next September. While their salaries will be withheld, the city will continue their medical insurance coverage.
Such teachers will be returned to their jobs and the payroll if and when they decide to be vaccinated. If they have not been vaccinated by the end of that leave, the system will assume they have resigned.
Staff who decline to accept an unpaid leave must be offered a severance package that would include payment for unused sick days, along with health insurance until the end of the school year. They would also be entitled to apply to return to city schools in the future.
Unvaccinated teachers who refuse all options will be subject to the disciplinary process.
Arbitration and the legal process
Arbitration is a process outside of the court system that is used to resolve differences between parties, often over contract interpretation — in this case a dispute between the UFT and the city over the impact of the Health Department’s vaccine mandate on the work of teachers and other staff members.
The arbitration finding does not resolve the underlying issue of whether the city has the legal authority to issue such a mandate for teachers and other city workers. The question of the city’s legal authority can only be resolved by the courts. The Municipal Labor Committee, of which the UFT is a member, has brought a suit in Manhattan Supreme Court to resolve that issue.
The arbitration was conducted by Martin F. Scheinman, of Scheinman Arbitration and Mediation Services. Read the arbitration decision »
This fight is serious, as so many people have been forced to retire or be terminated and give up on Federally mandated rights. For example, what happens if you have a medical allergy to an ingredient in the vaccine so if you take the vaccine, you could die. Do you lay down your life for the greater good of the State of New York?
What if you belong to a religion that forbids your partaking of certain drugs, enzymes, or ingredients in the vaccines? Do you have to discard firmly held beliefs in order to “protect” the public?
Many Constitutional rights are being trashed.
New York City’s political-legal-corporation-complex is overriding New York State Public Health Law which governs immunization requirements for adults:
““this section shall not apply to a person who holds genuine and sincere religious beliefs which are contrary to the practices herein required, and no certificate shall be required as a prerequisite to such person being admitted or received into or attending an institution.”
I am vaccinated and boosted, yet I will still fight any politician who says that someone must obey a mandate ordered by the Governor or anyone else on the political pipeline simply because the elected official says so. The “no exemptions” part is what I object to as unjust.
Who created the mandate without exemptions for medical necessity or religious beliefs? Martin Scheinman. I first met Mr. Scheinman in the 3020-a arbitration of David Pakter, a wonderful teacher who was charged with ridiculous misconduct by a revengeful principal. I met David in 2003 when we were asked to speak on a TV show together about the NYC Department of Education and the “rubber room”, something I had never heard of before. David told me to come to visit him in the rubber room on the 10th floor of 25 Chapel Street, in Brooklyn. A few days later I did that and stayed all day. I have continued to gather information and assist educators put into unjust positions ever since.
Martin Scheinman is a charismatic, brilliant lawyer who has strong political ties which I believe may have impacted his fairness to the labor groups in the NYC 3020-a arbitration as well as at the State level. He was a major fund-raiser for Bill de Blasio.
What I believe the right thing to do is – remove the Scheinman Arbitrators from hearing appeals for exemptions to the COVID vaccine mandate. Put the right to obtain an exemption to getting vaccinated into a proper forum outside of the Scheinman Arbitration and Mediation Services, and have hearings on the exemption applications heard by independent hearing officers not paid by the State or City to push the agenda without individual consideration of need.Martin Scheinman revised his original decision, and added that exemptions could be heard, then placed the arbitrators from his new company Scheinman Arbitration and Mediation Services on the job. Everyone who got an Appeal for a religious or medical exemption was denied if the arbitrator was from Mr. Scheinman’s company. I understand the right of the State and City of New York to put mandates in place to protect the greatest number of people, but to trash anyone with necessary religious and/or life-threatening exemptions to the rule is abhorrent and unjust. This truly is a life or death choice for the State and City.