NYC is Forcing Unionized Public Employees Into At-Will Terms of Employment

The focus of this post is to show how misleading the picture above is. The joke is on us, because the second bubble should say “but now I can do it with the union Just ‘Cause I want to!”

Authors Kate Andrias and Alexander Hertel-Fernandez in their paper on at-will employment (2021), “Ending At-Will Employment: A Guide for Just Cause Reform”, write about the inherent unfairness of at-will rules in Ending At-Will Employment (New York: Roosevelt Institute. https://rooseveltinstitute.org/publications/ending-at-will-employment-a-guide-for-just-cause-reform):

“In the United States, the vast majority of private-sector employers have free rein to discipline or fire workers for good reasons (for harassing other workers), bad reasons (a personal dislike of the worker or a worker’s off-duty activities), or even no reason at all so long as the employers’ justification is not otherwise barred by law. And even if a worker suspects they have been fired for an illegal reason – for instance, because of their race, ethnicity, or gender – the burden is on the worker, not the employer, to collect the necessary evidence, prove discriminatory intent, and mount a legal challenge.

This sweeping legal principle, called employment “at-will,” is the foundation of American employment relations for nonunion private-sector businesses in every state except for Montana.1 It is also unusual: In no other rich democracy do private-sector businesses have as much latitude to dismiss workers without justification as in the US (see box). Other countries require employers to spell out clear justifications for terminating a worker, limit firings to those that meet “just cause” standards, or most often, both (ILO n.d.).

American exceptionalism in at-will employment has pernicious consequences for workers and US workplaces. As we explain in this brief, at-will employment corrodes enforcement of workers’ labor, employment, and civil rights (e.g., Blades 1967; McGinley 1996). At-will employment also leaves workers vulnerable to arbitrary and unfair treatment by managers and supervisors. Workers already likely to experience discrimination or illegal treatment from their employer – for example, Black and brown workers, workers with lower levels of formal education, and low-wage workers – are especially vulnerable under at-will employment. On a more fundamental level, at-will employment erodes workers’ dignity and diminishes the possibility of real workplace democracy.”

Over the past 25 years, I have kept my ears to the ground as I collected information on how the NYC Department of Education and other Unionized agencies have turned their back on due process rights, tenure, and Just Cause employment. The ‘elite’ get paid high salaries to maintain control over their workers, condemn anyone for stepping out of line or making them – the higher ups – look bad, and to force all employees to keep quiet about all of this. Those at the top have “permission” to validate any complaint made against any worker, even if it is false.  If a parent files a complaint saying teacher X hit their child in class, teacher X gets removed, has a problem code put on his/her file, is reassigned to a rubber room, and is forced into a termination hearing or settlement, even if he/she wasn’t in the school on the day of the event. There are no investigations, only false claims that an “investigation” is occurring. It’s not. I am an expert witness on the Problem Code, PC cases, procedures, and who has done what to whom.

Over the past twenty years, the NYC government has changed the city workers’ employment from protected status (civil service/tenure) to at-will while hiding the lack of due process under a cloak of semantic confusion and chaos. See the article just published on this website about the SCHEINMAN AWARD SEPT 10, where Arbitrator Martin Scheinman (pictured at left) claimed that it was ok to put thousands of education professionals on leave without pay (LWOP), allow the DOE to put a problem code on everyone’s fingerprints, and then terminate everyone for not getting vaccinated against COVID….but none of these actions were “disciplinary.” That was a lie, made up to prevent anyone who asked for due process from keeping their jobs because some arbitrator does the right thing and decides not to terminate the miscreant/respondent, the accused.

I give another example of this fraud in my prior post:

“If someone wants to pursue religious exemptions under Title VII, research what that means. I suggest that you look up Religious Exemption Laws. On that map, New York State has no religious exemption law related to the provision of services.

Next, research “religious exemptions” under Title VII of the Civil Rights Act of 1964. There is no mention of religious exemptions.

In New York City Human Rights Law, “religious exemption” is not mentioned either.

In federal courts, judges dismiss NYC workers’ cases, saying that the plaintiff never requested an accommodation, only an exemption.

In my opinion, Scheinman and the Citywide panel pursued denying all exemptions because they knew the word “exemption” had no law behind it. This is fraud.

Scheinman did not want any ‘accidental’ win to happen, where an unvaccinated municipal worker slipped through the cracks and remained in his/her employment. How do I know?  I have represented accused educators at the 3020-a arbitration for over 15 years. I had arbitrators tell me they had been terminated from the arbitration panel because they were too “lenient” as they did not award termination in all cases. One arbitrator wanted the NYC DOE to drop him, so he deliberately exonerated all of the cases given to him. He was let go. The UFT also did not want the arbitrations to be held, so they did not file an Article 75 Appeal of the Scheinman Award. Individual members had no standing to file any opposition.

In March 2020, Beth Norton , General Counsel of the UFT, and Howard Friedman, former General Counsel of the NYC Department of Education, signed a Memorandum of Agreement 2020 wherein they agreed to change UFT members’ terms of employment as needed for the pandemic. See p. 2:

“Any modifications to the terms and conditions of employment for UFT members, and all processes set forth in the collective bargaining agreements, or any other agreements, that are made in relation to the COVID-19 pandemic and the DOE response thereto have been agreed to as a precautionary measure in response to the global emergency and to ensure the safety of staff and to preserve the continuity of learning for the students of New
York City to the greatest extent possible.”

This document was never seen or ratified by UFT members.

If you read the transcript of the UFT Zoom meeting held on October 6, 2021, with UFT President Michael Mulgrew (pictured at left), UFT Rep. Mike Sill, and Rep. Dave Kamansky, you will see that no one wanted an unvaccinated teacher to continue in their job. See the transcript: Transcript-Oct 6 2021 Townhall.

On November 2, 2021, Amy Arundell called a member who could not get vaccinated because of her religious beliefs and was denied an ‘exception’. This member also had the days between October 4, 2021 (day of the start of LWOP) and October 15, 2021 (payday for all DOE employees) grabbed back and taken out of her salary because those days were “unauthorized absence”. This shows how crazy the removal from salary on October 4 2021 really was. Whoever thought up that date forgot that this was the middle of a pay period. So, the DOE punished the employee – not the DOE – for getting paid after October 4, even though any employee who showed up to work the week of October 4 without a valid COVID vaccination card was not allowed in any DOE building. Amy told the member, “Since you will not get the vaccine, you have no right to your salary.” Amy agreed she should have never been paid and deserved to have the money taken out of her salary. Gee- thanks, Amy. See transcript: Transcript-Nov. 2, 2021 call. Female Voice #1 is Amy Arundell.

By the way, I did this member’s PERB case (no one needs to hire an attorney, so non-attorneys like me can represent the Complainant) and I submitted the transcripts in her case as part of my closing argument, and suddenly the NYSUT Attorney representing the UFT had a meltdown, and told the ALJ that she should not read my closing, as I had “created” the transcript. Clearly, the transcripts are certified by a professional at Ubiqus, and I did not create either transcript, although I paid Ubiqus for them. I did not tell anyone at Ubiqus to put my name on the cover. The UFT did not want these transcripts to be public. A few weeks after I submitted the tape and transcript to the ALJ at PERB, Amy Arundell was removed from the Queens Borough office of the UFT and reassigned to 52 Broadway. I think the November 2, 2021 call did it. I was not on the call and did not tape it myself. Remember, New York State is a one-party state, where anyone can secretly tape any conversation they participate in without telling the other(s) on the call.

The government in NYC targets union workers because unions are supposed to protect the rank and file from being fired unless given a due process hearing on the reasons for the action.  (Education Law Section 3020). The New York City government has undermined this law for at least 20 years because the ‘elite’  want to get rid of someone if they are not meeting the standards set up by the chosen few.  They support the idea that the government is a benevolent dictator, a pro-business employer able to fire anyone at will.

From Wikipedia:

“Jack Welch, who became chief executive of General Electric in 1981, would fire the bottom 10% of his managers each year, regardless of absolute performance. He earned a reputation for brutal candor. He rewarded those in the top 20% with bonuses and employee stock options and used this model to raise the company’s revenue to $130 billion during his tenure, while its shares on the stock market soared from $14 billion to more than $140 billion. He wrote in his memoir “Any organization that thinks it can guarantee job security is going down a dead end. Only satisfied customers can give people job security. Not companies. That reality put an end to the implicit contracts that corporations once had with their employees.”

When Michael Bloomberg became mayor in 2002, he blatantly trampled job protections for municipal workers and tenured educators. His goal,  in my opinion, was to change the terms of employment for city employees so that everyone became an employee “at will” despite what Civil Service Law and the Taylor “tenure” Law said The most obvious example is what he did at the NYC Board of Education. He put the entire Agency under Mayoral control. He spent, I heard, more than $1 million changing the stationery logo from the NYC Board of Education to the NYC “Department” of Education, but the name was never changed legally. Bloomberg put lawyers in each District office and ensured that these lawyers supported firing anyone who had a complaint filed against them. Determining if there was probable cause, a major part of the charging procedure in the Education Law (Section 1 and 2 of Ed. Law 3020 and 3020-a), was thrown away and ignored. To make sure that these miscreants did not accidentally get hired anywhere within the agency, a database under “The Monitoring Unit” was created with the social security numbers of anyone who was complained about, before any due process hearing took place and without any probable cause finding.  He then appointed the Chancellor and set up reassignment centers (the famous “Rubber Rooms”) to hold the educators while they were awaiting their due process hearing known as “3020-a” arbitration. I’m not talking about NASA’s ‘rubber rooms’.

New York State’s first civil service law:” enacted in 1883 (Chapter 354), provided for a merit system of competitive examinations for the appointment and promotion of State government employees. It established a Civil Service Commission, consisting of three persons appointed by the governor with advice and consent of the senate, to administer the law. In 1884 civil service provisions were extended to some local governments; municipal civil service commissions were established and supervised by the state commission. In 1894 the principle of the merit system was embodied in the new State constitution.

Following the 1925-26 reorganization of State government, the Department of Civil Service was created, and the Civil Service Commission was designated as the head of the department (Laws of 1926, Chapter 354). In 1953 (Chapter 19) the governor was authorized to designate one commissioner as president of the commission and chief administrator of the department. In 1994, the Division of Affirmative Careers, within the Department of Civil Service, was renamed the Division of Diversity Planning Management. This division administers the Reasonable Accommodation Program and the program to hire persons and veterans with disabilities (55-b and 55-c). It also approves and monitors affirmative action plans for state agencies and provides technical assistance and training toward the achievement of diversity in the work force. The NYC Government had to override the Commission to get the full force of their goal: to make all municipal workers at-will employees.

The department introduced additional procedural changes in 1996 as a part of the Governor’s Civil Service Reform legislation (Laws of 1995, Chapters 314-317) aimed at cutting costs and improving efficiency in the testing process. These changes included reducing and consolidating job titles, testing long-term provisional appointees, improving promotional testing through scoring procedures, and increasing the use of information technology.”

Well, we cannot believe this any longer, at least in New York City. In 2020, the COVID pandemic panic “permitted” people in powerful positions in City government to fire municipal workers, something the government has wanted to do for decades.

Our Constitution has been sacrificed to protect the “greater good” for all people as decided by the government. All in the name of an experimental vaccine that was never proven effective.

Shame on them, and shame on anyone who believes this culture of deceit and travesty of justice to be fair.

Betsy Combier

betsy@advocatz.com

Editor, Inside 3020-a Teacher Trials