Speculation on Weingarten and Mulgrew futures - Part 1

Norm here - Sept. 30, 2020 

The next UFT election is looming in spring 2022 and Mulgrew is reaching new levels of unpopularity due to the often tepid UFT response on opening
schools. especially with the CSA coming off as more militant than the UFT. The standard opposition voices have been very active. And in addition there is growing skepticism within the UFT rank and file and even in Unity Caucus about Mulgrew's leadership. (My sources tell me that some in Unity wanted to strike). And then there is a history of the three most recent UFT leaders going back to 1974 becoming AFT president. And with massive budget cuts to come once schools reopen - probably by next year - [See Arthur report - UFT Executive Board September 29, 2020--Staffing is a Disaster and the Budget Looks Even Worse] all balls are in the air.

With speculation growing about Randi's future, Mulgrew's future must enter into the picture. In this 3 part series I will speculate about the possibility Mulgrew may very well not be the Unity Caucus UFT presidential candidate in the 2022 election, depending on just how bad the conditions in the schools get and how relatively weak Mulgrew looks.

Recent articles, from the left (Jacobin) and from the right (Mike Antonucci/Intercepts), addressed another upcoming election, for AFL-CIO president if Richard Trumpka retires - or is pushed. How would Randi's leaving the AFT affect the UFT and Mulgrew? I'll address that issue in more detail in Part 2 or 3.

What does Randi really want?

In 2016 there were rumors Randi would be Hillary's Secty of Education and now there are rumors she would be up for the same job in a Biden administration since the Dems said they would appoint a teacher - which in itself is funny since Randi was way more lawyer than teacher (she taught full-time for only 6 months but that's better than an Arne Duncan or Betsy De Vos).

I've disparaged this idea because Sect'y of Ed is so subordinate to the President and other forces it is much less powerful than the AFT President.

For the past two decades the only position I felt Randi would leave for would be to lead the AFL-CIO, which includes the bulk of the US labor movement. She would be the first woman to head that organization.

The other option would be merging the AFT and NEA into a 4 million member national union with her at the head. There would be a lot of push back from the NEA which has term limits and is wary of AFT/Unity Caucus lack of democracy.

AFL-CIO head was the position UFT founder Al Shanker wanted and if he had lived he might have gotten it - he was a fave of the big boss George Meany due to his pro-Vietnam War stance and hard line anti-communism. But not being from an industrialized union in the 80s and 90s was not a good talking point for leadership. But now teacher unions are among the strongest remnants of unionism and a leader is primed for AFL-CIO leader.

(Read the review of his bio I co-wrote - Albert Shanker: Ruthless Neocon - Review by Vera Pavone and Norman Scott in New Politic http://newpol.org/content/albert-shanker-ruthless-neo-con)

Shanker's final position was AFT president when he died in 1997 and I can imagine Randi dreaming of rising to the position Shanker coveted. (She had to wait 10 years to rise to AFT Pres in 2009 after Sandi Feldman died. The deaths of two founders of the UFT in their 60s cleared the way for Randi. Think of the AFT presidency like the Supreme Court - lifetime appointment by Unity Caucus.)

But there are others in Randi's way - competitors like NEA president Lily Eskelsen García who is term-limited while Randi is assure of being AFT president for life. The heir apparent to Trumpka is Liz Shuler: The AFL-CIO secretary-treasurer. 

But the most intriguing candidate is the union leader darling of the left, Sara Nelson, of the Association of Flight Attendants union, setting up a replica of the Biden/Bernie battle in the Dem Party - a delicious thought. I've been a fan of Nelson as has been much of the left. Randi and Eskelson Garcia have the numbers of members compared to Nelson but more on this center vs left aspect in part 2. But first,

Some history of Randi trolling Trumpka:

A report from FOX news, Aug. 2, 2018

 - AFL-CIO President Richard Trumka is getting an earful – on Twitter – from teachers union boss Randi Weingarten for reportedly keeping the door open to a possible Trump endorsement in 2020.  Newsmax reported Wednesday that Trumka would not rule out a union endorsement for the president. “Every [candidate] will be looked at,” Trumka said. He added, “we will consider every candidate who’s running.”... FOX- https://www.foxnews.com/politics/trumka-blasted-by-teachers-union-boss-for-keeping-door-open-on-trump-2020-endorsement

Then: Weingarten walked her comments back, saying, without any real explanation, that Trumka had clarified his remarks.

Of course, Randi walked back her remarks but she had issued a warning shot across Trumpka's bow. 

Then we have this report from Mike Antonucci in May, 2019:

Is Randi Weingarten Really “Sniffing,” “Swirling” and “Flirting?” --
Mike Antonucci Posted on May 14, 2019

http://www.eiaonline.com/intercepts/2019/05/14/is-randi-weingarten-really-sniffing-swirling-and-flirting/ 

Bloomberg Law runs a column called the Daily Labor Report, and this week the lead item is about who is waiting in the wings to challenge AFL-CIO president Richard Trumka.

The timing of the piece is curious, to say the least. Trumka has more than two years remaining in his current term, and the AFL-CIO doesn’t practice term limits. Trumka has been president for 10 years and, leaving out the short tenure of one interim president, previous presidents have served for 14, 16 and 24 years.

But, okay, let’s roll with it:

Trumka still has more than two years left in his third term at the helm, but that’s not stopping some of his possible successors from sniffing out potential support for a run if and when the seat opens. Three names are swirling as likely candidates to eventually replace Trumka, and at least two of them are making calls behind the scenes to try to build a backing, according to sources.

…Randi Weingarten: The American Federation of Teachers president flirted with challenging Trumka in the last AFL-CIO election and has since been a prominent voice in highly publicized school house strikes. Weingarten is taking a page from the Paul Ryan for Speaker of the House playbook: She will publicly say she’s not interested in the job, while remaining open to the option behind the scenes if sufficiently urged to do so by others.

Weingarten’s name has been floated in the past as a U.S. Senator and a Secretary of Education. I have no idea if she is interested in being president of the AFL-CIO. Clearly, neither does Bloomberg Law, but it didn’t stop them from posting a column about it.

I can think of at least one good reason she wouldn’t want the job. She made $405,793 last year as AFT president. Trumka made $261,779.

What does this all mean for the UFT and Mulgrew? Hold your breath. Parts 2 and 3 are coming soon. 

NYC District 14 Demands Safe Schools/Remote Learning (9/16/2020) - Video by Darren Marelli

Highlights from the community gathering outside District 14 Superintendent, Alicja Winnicki's, office Thursday demanding the maintenance of an all remote/ start for NYC schools.

I used to go into Winnicki's classroom for tech support in the early 2000s. She's been supt for a long time back to the Bloomberg era -- a decade I think. I'm sure she is not happy about parents pushing back. Most interesting to me is that the head of CEC 14 (local board) seems to be one of the leaders -- I know how hard people at the top work to keep parents at the school and district level in line. The rage against Carranza and DeBlasio's leadership of NYC schools is very similar to the rage expressed when Bloomberg and Klein's were in charge.

Video: https://youtu.be/NSJsiIvuIWI

Art Teachers in NYC Protest Unsafe School Reopening

 

PRESS RELEASE

EMBARGOED UNTIL: 8:30 PM on 9/18/20

Contact: B. Kaiser & Caroline Sykora
Phone: 914-282-4329/412-849-6882
Email: kaiserbkaiser@gmail.com

Art Teachers in NYC Protest Unsafe School Reopening

NYC, NY. (Sept. 18, 2020) - A group of art teachers from NYC public schools, in collaboration with the artist collective The Illuminator, will project a visual protest against unsafe reopening of our school buildings. The protest will take place on Friday 9/18 across the street from Tweed Courthouse at 52 Chambers St. at 8:30 PM. The art educators behind the action join the chorus of parents, teachers, and students demanding equity, transparency, and safety that has been sorely lacking in the DOE's inadequate and contradictory plans to-date. An example of the art that will be projected, an illustration by Caroline Sykora, is attached.

As of 9/17, the start date for in-person learning has already changed twice, leaving families confused and scrambling for childcare at the last minute. Meanwhile, teachers' careful planning has been upended and we have no confidence that the extra time can or will be properly utilized to make our buildings fully safe and staffed. We demand that the DOE transition to full remote learning and focus all of its resources on ensuring that every student has basic supplies, a computer, internet access, and tech training in their home language. 

Teachers Denounce Hunter Schools' Reopening Plan At Protest - Patch

 

Teachers Denounce Hunter Schools' Reopening Plan At Protest

Protesting staff said the school, which is run by CUNY, is the only one in the city that won't reopen with COVID-19 testing and inspections.

By Nick Garber, Patch Staff

Sep 16, 2020 6:38 pm ET|Updated Sep 16, 2020 9:58 pm ET

UPPER EAST SIDE, NY — Teachers and parents denounced the Hunter College Campus Schools' reopening plan in a protest Wednesday outside the fortresslike school building, alleging that administrators will put staff at risk by refusing to include coronavirus safety measures in place at every other school in the city.

Staff say that Hunter will be the only public school in New York City to reopen for in-person classes next week without random coronavirus testing of students and teachers, inspections of ventilation systems in each room and contact tracing of confirmed COVID-19 cases.

https://patch.com/new-york/upper-east-side-nyc/teachers-denounce-hunter-schools-reopening-plan-protest

Sept.16 , 2020 - Should We Worry About COVID-19 Teacher Strikes? - Mike Antonucci Analysis - Plus another delay

Just as I was about to publish this, the news came through of another week delay -- I'm listening to Brian Lehrer who feels that there is so much resistance from teachers they just weren't going to go in -- so deB is splitting off the pre-k and dist 75, Sept 21 - 3-k, pre-k, dist 75, Sept 20 K-5, K-8 schools, Oct 1 - middle and high schools.

Every single day de B and NYCDOE prove they are incompetent - they can't manage their way out of a paper bag. So it is not surprising and don't be  surprised at further delays. The UFT has been brutally attacked from within over its handling of the situation. I agree with a lot of the criticism but not all and I will delve into why in an upcoming post. The have been playing a waiting game so as not to antagonize  the public and knowing full well that deB will botch things - so now middle and high schools not going back until Oct. 1 -- and I have been pushing for a phased entry with younger kids who are closer to schools and many can walk making sense to go back first.

I put the info below together last night but it is still relevant. Antonucci's points about the impact of a strike are still relevant.

 Norm here - Sept. 16, 2020

I know, I know, I always  have to be a contrarian. But that is my job - to piss everyone off. Here's a question, if there are 1800 schools and we see demos and resistance at dozens so far over unsafe conditions, where are the rest of them? Are they considered safe by the staff or is there a lack of an organizing force? Or are they afraid? Just asking - I do see signs of more resistance but it needs to be a critical mass of hundreds, not dozens.

In cancel culture, posting anything from libertarian anti-union ed commentator Mike Antonucci could get me banned. Here Mike takes a deep dive on the implications of a COVID-19 teacher strike. While I often don't agree I appreciate the thoughtful analysis even when he gets some things wrong.

Here are some of his major points with some comments by me where appropriate.

HS Economics and Finance in revolt as Teachers are threatened and Supt Vivian Orlen and UFT Rep Anthiny Klug in Confrontation

NY Post - Protesting NYC teachers threatened with docked pay if they don’t return to class

September 15, 2020 | 5:10  https://nypost.com/2020/09/15/doe-threatens-to-dock-pay-from-manhattan-hs-teachers-protesting/

 Sept. 15, 2020

Chapter leader Dave Siroonian, an old friend and fellow blogger, has been posting on a facebook chat which I am posting excerpts here and he sent me the letters the teachers sent to the principal and to Mulgrew.

We have the entire building

No classrooms have windows

And we have no filters installed

Goes up to 10 floors.

This is an ongoing story right now and press has been notified. 
 

Here are details. 

Over 20 of my teachers started the day outside of the building today. We were one of the 10 buildings shut down. DOE tried to force us back in today.

We have 16 specific questions... Supe Vivian Orlen came down to tell us about testing (irrelevant) and inform us that they have no PPEs to give out and cannot confirm presence of Merv13 filters.
Screamed at Klug claimed he was harassing her. He's a likeable guy. You know he didn't approach the superintendent with anything other than respect. He works with Janella Hinds and Mike Mulgrew.

Telling him to fuck off is like telling Mulgrew to fuck off.

 

I emailed admin last night with 16 specific concerns we had before we stepped back into building...all questions were based on UFT report. They have not answered a single one

They are just making threats 

 

Teachers have asked for the ultimatum to dock them a day for not coming in in writing

So far, NONE of the 16 questions have been answered... no PPE, no filters, no procedures in place for students but they want us to come in and plan.

On a building that was unfit to open a week ago.

Letter to admin:

We appreciate your efforts in getting this school year off to a productive start. The staff at the High School of Economics and Finance realize the challenges involved in trying to run a school when there are so many moving parts and uncertainties. Whatever concerns we have about the viability of opening our building to professional development or instruction at this point are not aimed at you or anyone in the administration. In fact, we come to you in search of support and invite you to join us in addressing these concerns. You are our colleagues as well. We care for your well-being and that of your families.

As you know, the Department of Education deemed our building too unsafe to reopen this past Labor Day. Since then, we have spent the past week carrying out our professional duties remotely. The Department of Education led us to believe that they had fixed the problems in our building. 

Needless to say, after the city dithered on closing schools this past March and after dozens of our educator colleagues around the city succumbed to Covid-19, we are skeptical of claims made by the Department of Education as to the safety of our facilities. Many of the problems in our building are long-standing. Could they have all been remedied in the span of four days?

As you also know, the United Federation of Teachers conducted an inspection of the building before the repairs were made. It now falls upon us, as per the agreement reached between the UFT and DOE, to update this inspection. The questions below are all based on the parts of the UFT inspection that have yet to be resolved:

1) What social distancing signage do we have? 

2) Do we have a full-time nurse? 

3) Does the nurse have an office? 

4) Does the nurse's office have the proper partitions and PPE? 

5) How will morning entry be handled? 

6) How will afternoon dismissal be handled? 

7) How will lunch service be handled? 

8) How will the use of elevators be handled? 

9) Do we have a dedicated isolation room? 

10) What is the protocol for a student who claims to feel sick? 

11) What is the protocol for when a student attends school on a day they are not scheduled to be in person? 

12) What PPE do we have for staff and students? 

13) Are Merv-13 filters installed? 

14) Which classrooms/staff spaces do not have proper airflow? 

15) When/how often does the Building Response Team meet? 

16) Specifically, what work was carried out over the past week to make the building ready for professional development and instruction? 

While these questions do not cover everything, they serve as a starting point to ensure we have the minimum protection for staff and students. We feel the best course of action for all stakeholders is for us to work remotely from outside of the building until these concerns have been thoroughly addressed. We invite you to join us as well. We will be in contact with the UFT for guidance throughout the day. We do this to ensure the safety of our students, our colleagues and our families. 

Thank you for your time In solidarity, 

Here is the letter I sent Mulgrew just now:

Dear Mr. Mulgrew, 

I am writing you in all urgency as the Chapter Leader at the HS of Economics and Finance. As you know, we were one of the 22 schools closed last week due to ventilation issues. Principal directed us to come in today since the DOE has cleared the space for reopening. Our staff was worried because we have many unresolved issues in UFT report. I emailed the administration with a list of 16 unresolved questions based upon the UFT's report. They still have not answered a single question. 

They cannot tell us if there are MERV13 filters and they do not have PPE for the staff. The principal and superintendent threatened that if they don't enter the building by 1pm, they will be docked pay. I have copy and pasted the questions we asked of our administration below. Our teachers are taking a stand but I fear most will be compelled to go back inside by one. 1) What social distancing signage do we have? 2) Do we have a full-time nurse? 3) Does the nurse have an office? 4) Does the nurse's office have the proper partitions and PPE? 5) How will morning entry be handled? 6) How will afternoon dismissal be handled? 7) How will lunch service be handled? 8) How will the use of elevators be handled? 9) Do we have a dedicated isolation room? 10) What is the protocol for a student who claims to feel sick? 11) What is the protocol for when a student attends school on a day they are not scheduled to be in person? 12) What PPE do we have for staff and students? 13) Are Merv-13 filters installed? 14) Which classrooms/staff spaces do not have proper airflow? 15) When/how often does the Building Response Team meet? 16) Specifically, what work was carried out over the past week to make the building ready for professional development and instruction? 

 I've been in the school which is a few blocks from the UFT building

Solidarity Teachers Win Temporary Restaining Order Broadening Accomodations - Only for Petitioners

Petitioners argue that DOE’s use of the CDC’s “high-risk” categories are arbitrary and capricious and “do not protect teachers who do not strictly fall within the CDC guidelines, but should also be allowed to work remotely due to their own medical concerns and concerns about the health and safety of their families and loved ones” (Pet’rs’ Affirm ¶ 8). Specifically, Petitioners argue that “it is irrational and arbitrary and capricious that educators who are smokers or suffer from obesity or are simply over 65 years old would be eligible for medical accommodations,” but that Petitioners would not qualify for the same accommodations based on the similar needs of their immediate family members (id. at ¶ 9).

CONCLUSION/ORDER

For the reasons above, it is

ORDERED that Petitioners’ motion for a temporary restraining order is GRANTED solely to the extent that Respondents may not compel Petitioners to report to work in person, may not deny them the ability to work remotely, and may not deny or deduct salary and/or leave time for remote work until further order of the Court; and it is further

ORDERED that this TRO applies only to the named Petitioners; and it is further

ORDERED that counsel for the parties shall forthwith confer regarding their immediate availability for an expedited remote hearing on the preliminary injunction and call the Court at 10 a.m. on September 15, 2020 to discuss the logistics of the hearing.

This constitutes the decision and order of the Court.

Some excerpts from the court decision including issues dismissed.

I. Standard for injunctive relief

CPLR 6301 provides, in relevant part, that

A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff.

“A preliminary injunction substantially limits a defendant’s rights and is thus an extraordinary provisional remedy requiring a special showing” (1234 Broadway LLC v W. Side SRO Law Project, Goddard Riverside Community Ctr., 86 AD3d 18, 23 [1st Dept 2011]). Thus, to establish entitlement to a TRO or preliminary injunction, the movant 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 (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]). “While the proponent of a preliminary injunction need not tender conclusive proof beyond any factual dispute establishing ultimate success in the underlying action, a party seeking the drastic remedy of a preliminary injunction must nevertheless establish a clear right to that relief under the law and the undisputed facts upon the moving papers” (1234 Broadway LLC, 86 AD3d at 23).

“[T]he ordinary function of a preliminary injunction is not to determine the ultimate rights of the parties, but to maintain the status quo until there can be a full hearing on the merits. However, if relief is required because of imperative, urgent, or grave necessity, then a court, acting with great caution and upon clearest evidence, i.e., where the undisputed facts are such

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that without an injunction order a trial will be futile, may grant a preliminary injunction” (Spectrum Stamford, LLC v 400 Atl. Tit., LLC, 162 AD3d 615, 616 [1st Dept 2018] [affirming denial of injunction in the absence of “imperative, urgent, or grave necessity” that the current property manager be replaced at that time]). A mandatory preliminary injunction granting some form of the ultimate relief sought is granted “only in unusual situations, where the granting of the relief is essential to maintain the status quo pending trial of the action” (Spectrum Stamford, 162 AD3d at at 617).

A. Likelihood of success on the merits

Petitioners argue that DOE’s use of the CDC’s “high-risk” categories are arbitrary and capricious and “do not protect teachers who do not strictly fall within the CDC guidelines, but should also be allowed to work remotely due to their own medical concerns and concerns about the health and safety of their families and loved ones” (Pet’rs’ Affirm ¶ 8). Specifically, Petitioners argue that “it is irrational and arbitrary and capricious that educators who are smokers or suffer from obesity or are simply over 65 years old would be eligible for medical accommodations,” but that Petitioners would not qualify for the same accommodations based on the similar needs of their immediate family members (id. at ¶ 9). At oral argument, Petitioners also alleged the existence of an additional accommodation policy affording each school principal additional discretion to grant an accommodation. Petitioners also attach a recent Florida Circuit Court decision imposing a temporary injunction barring Governor Ron DeSantis from mandating that teachers return to in-person instruction, together with newspaper articles highlighting other school districts which have chosen to transition to all-remote learning for the foreseeable future (Florida Education Association, et al., v. Desantis, et al., No. 2020-CA-001450 [Fla. 2nd Cir. Ct. Aug. 24, 2020], NYSCEF 4-5).

As an initial matter, Respondents argue that Petitioners have not met the standards for mandamus relief. Respondents are generally correct that “a mandamus to compel may not force the performance of a discretionary act, but rather only purely ministerial acts to which a clear legal right exists” (Matter of Anonymous v Commissioner of Health, 21 AD3d 841 [1st Dept 2005]).

However, at this juncture, it does not appear that Petitioners are seeking—or, at minimum, seeking only—mandamus to compel the performance of any statutory (or other) duty; in Respondents’ words, “to upend the DOE’s reopening plan and reasonable accommodation guidelines” (Opp ¶ 50). Rather, Petitioners are seeking review of the Accommodation Policy’s failure to contemplate the documented medical needs of immediate family members, as well as the allegedly inconsistent application of the Accommodation Policy; specifically, that similarly- situated colleagues were afforded an accommodation (see e.g. Matter of Scherbyn v Wayne- Finger Lakes Bd. of Co-op. Educ. Services, 77 NY2d 753, 757 [1991]) [“...mandamus to review ... differs from mandamus to compel in that a petitioner seeking the latter must have a clear legal right to the relief demanded and there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief,” while a “... mandamus to review ... examines an administrative action involving the exercise of discretion” (Matter of Scherbyn v Wayne-Finger Lakes Bd. of Co-op. Educ. Services, 77 NY2d 753, 757 [1991]).

 

B. Danger of irreparable injury in the absence of an injunction

Petitioners argue that the failure to grant injunctive relief will result in irreparable harm because they are faced with choosing between their health and the health of their families and their economic livelihoods (Pet’rs’ Affirm ¶¶ 3, et seq.). Respondents argue that irreparable harm “must be of the type that cannot be redressed by money damages or other relief” (Opp ¶¶ 68, et seq.).

As a general matter, it is true that the prospective injury, as alleged by Petitioners, if they are forced to return to in-person teaching is potentially irreparable: a significant illness, hospitalization, or even death could result from any one infection (see Innovative Health Systems, Inc. v City of White Plains, 117 F3d 37, 43-44 [2d Cir 1997] [finding irreparable harm where the closure of a treatment program would pose serious risk of harm to plaintiffs, including

“death, illness or disability”]; see also Cuomo predicts Covid-19 outbreaks in K-12 schools amid reopenings, NY Post, Aug. 31 2020 [“A coronavirus outbreak in schools that forces them to shutter and turn to all-remote learning is inevitable, Gov. Andrew Cuomo warned Monday. ... ‘It is inevitable that when you bring a concentration of people together, the transmission rate will go up,’ Cuomo said.”]; see also CDC: Morbidity and Mortality Weekly Report: Transmission Dynamics of Covid-19 Outbreaks Associated with Child Care Facilities – Salt Lake City, Utah, April-July 2020, Sep. 11, 2020, https://www.cdc.gov/mmwr/volumes/69/ wr/mm6937e3.htm?s_cid=mm6937e3_w] [determining that Covid-19 transmission was documented from 12 children in child care facilities, including two asymptomatic children, to at least 26% of 46 confirmed or probable non-facility cases, including the hospitalization of one parent]). However, the damage sought to be enjoined must be likely and not merely possible; fear or apprehension of the possibility of injury alone is not a basis for injunctive relief (Dist. Council 82, 64 NY2d at 240 [“where the harm sought to be enjoined is contingent upon events which may not come to pass, the claim to enjoin the purported hazard [closure of prisons] is nonjusticiable as wholly speculative and abstract.”]; see also Frey v DeCordova Bend Estates Owners Ass'n, 647 SW2d 246, 248 [Tex 1983] [denying injunctive relief sought on basis of fear that assessed fees would be invalid]; Callis, Papa, Jackstadt & Halloran, P.C. v Norfolk and W. Ry. Co., 195 Ill 2d 356, 371, 748 NE2d 153, 162 [2001] [denying injunctive relief based on fear of disclosure of confidential information]). That said, Petitioners’ allegations regarding their respective school buildings is entirely speculative; where there is any support provided, it is based on conditions from six months ago. While courts across the country have concluded that the risk of contracting Covid-19 as a result of unsafe conditions constitutes irreparable harm, those decisions discussed confinement, usually in immigration detention (see Martinez-Brooks v

Easter, 3:20-CV-00569 (MPS), 2020 WL 2405350, at *27 [D Conn May 12, 2020], citing Wilson v Williams, 2020 WL 1940882, at *9 [N.D.Ohio Apr. 22, 2020]; Mays v Dart, 2020 WL 1812381, at *13 [N.D. Ill. Apr. 9, 2020]; Basank v Decker, 2020 WL 1481503, at *4 [S.D.N.Y. Mar. 26, 2020] [“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO.”]).

Petitioners’ characterization of their dilemma as a “Hobson’s Choice” is apropos.

“Hobson’s Choice” derives from the “take it or leave it” practice of a livery keeper in Cambridge

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England in the 1600s who, when a customer wanted to rent a horse, would rotate the order in

which he lent his livestock. The customer could not choose his mount and had to either take the

horse offered or leave without a mount. Here, Petitioners face a difficult choice, but not an

impossible one. They have the option, however difficult or unappealing, of choosing—as some

already have—to utilize accrued leave time by staying home. Petitioners’ papers do not contain

information regarding each Petitioner’s individual leave or pay situations; to the extent, however,

that they may lose accrued leave, or eventually pay, “[i]njuries that are compensable by

monetary relief, even if monetary damages are difficult to calculate, are not irreparable for the

purposes of a preliminary injunction (SportsChannel Am. Associates v Nat'l Hockey League, 186

AD2d 417, 418 [1st Dept 1992]). Accordingly, Petitioners have not demonstrated a danger of

irreparable injury.

C. Balance of the equities

Petitioners argue that DOE: “(1) has a record of disregarding the health and safety of students and staff in their schools, (2) is forcing employees to choose between their lives and health and a paycheck on September 8, 2020, and (3) is arbitrarily determining that only certain employees merit a remote work accommodation due to its July 15, 2020 policy” (Pet’rs’ Affirm ¶ 12). Respondents focus on “[t]he harm done to the children of the City by an absence of teachers who do not themselves qualify for a reasonable accommodation in the form of remote work ...” (Opp ¶ 76). Respondents argue that “[o]ver one million children will be deprived of access to in- person education if schools are forced to move to a fully remote model because there are not enough teachers available to deliver on-site learning, should these petitioners and others refuse to perform their job duties” (id.).

“In evaluating the balance of equities on a motion for a preliminary injunction, courts must weigh the interests of the general public as well as the interests of the parties to the litigation” (Amboy Bus Co., Inc. v Klein, 2010 NY Slip Op 31356[U], *24-25 [Sup Ct, NY County 2010, Madden, J.]). To obtain an injunction, a plaintiff is “required to show that the irreparable injury to be sustained is more burdensome to him than the harm that would be caused to the defendant through the imposition of the injunction” (Lombard v Sta. Sq. Inn Apts. Corp., 94 AD3d 717, 721-722 [2d Dept 2012]).

Respondents express (justified) concern for one million pupils, but that concern is overstated, as any injunctive relief will, to the extent that no other evidence regarding any other parties has been presented, be limited to the five Petitioners, and therefore only to their students. Additionally, to the extent that Respondents express staffing concerns, shortly before the issuance of this decision, Mayor de Blasio stated that “2,000 additional educators” would be deployed across New York City (New York City Answers Call For More Teachers, Establishes COVID Situation Room To Monitor Cases In Schools, https://newyork.cbslocal.com/2020/09/14/ nyc-schools-covid-situation-room/]). Moreover, in determining the parties’ respective burdens, it is significant that several Petitioners have already been granted leave to work remotely until at least September 21, 2020, or have simply declined to return in-person until further notice. Accordingly, the Court finds that the balance of the equities—by an exceedingly thin margin— favors Petitioners.

Regardless of the precise nature of the challenge, Respondents rightly focus on a seminal case which, like this one, implicates both work safety and the separation of powers:

New York State Inspection, Sec. and Law Enf't Employees, Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233 [1984] [“Dist. Council 82”]). In that case, corrections personnel sought to prevent New York from partially converting a psychiatric center to a medium security correctional facility as part of a capital expansion plan, arguing that doing so “would exacerbate the risk of serious bodily injury and death to persons employed at prison facilities, in violation of their statutory right to a safe workplace (Dist. Council 82, 64 NY2d at 238).

The Court analyzed the scope of the judiciary’s role within our tripartite system of government, holding that “[t]he lawful acts of executive branch officials, performed in satisfaction of responsibilities conferred by law, involve questions of judgment, allocation of resources and ordering of priorities, which are generally not subject to judicial review. This judicial deference to a coordinate, coequal branch of government includes one issue of justiciability generally denominated as the ‘political question’ doctrine” (id. at 239). “By seeking to vindicate their legally protected interest in a safe workplace,” the Court held, the “petitioners call for a remedy which would embroil the judiciary in the management and operation of the State correction system” (id.; see also S. Bay United Pentecostal Church v Newsom, 140 S Ct 1613, 207 L Ed 2d 154 [2020] [denying injunctive relief against Covid-19-related attendance restrictions at houses of worship because “[o]ur Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect [and] [w]hen those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad”] [Roberts, C.J., concurring]).

Respondents express (justified) concern for one million pupils, but that concern is overstated, as any injunctive relief will, to the extent that no other evidence regarding any other parties has been presented, be limited to the five Petitioners, and therefore only to their students. Additionally, to the extent that Respondents express staffing concerns, shortly before the issuance of this decision, Mayor de Blasio stated that “2,000 additional educators” would be deployed across New York City (New York City Answers Call For More Teachers, Establishes COVID Situation Room To Monitor Cases In Schools, https://newyork.cbslocal.com/2020/09/14/ nyc-schools-covid-situation-room/]). Moreover, in determining the parties’ respective burdens, it is significant that several Petitioners have already been granted leave to work remotely until at least September 21, 2020, or have simply declined to return in-person until further notice. Accordingly, the Court finds that the balance of the equities—by an exceedingly thin margin— favors Petitioners.

 

Undertaking

To the extent that Respondents seek an undertaking “to reimburse the City for lost monetary savings ... [because] all plans for the start of the school year will need to be dramatically altered, resulting in substantial cost to the DOE, in addition to inconvenience to well over a million New Yorkers,” Respondents’ allegations are overbroad and speculative. Accordingly, that branch of the motion is denied without prejudice.

CONCLUSION/ORDER

For the reasons above, it is

ORDERED that Petitioners’ motion for a temporary restraining order is GRANTED solely to the extent that Respondents may not compel Petitioners to report to work in person, may not deny them the ability to work remotely, and may not deny or deduct salary and/or leave time for remote work until further order of the Court; and it is further

ORDERED that this TRO applies only to the named Petitioners; and it is further

ORDERED that counsel for the parties shall forthwith confer regarding their immediate availability for an expedited remote hearing on the preliminary injunction and call the Court at 10 a.m. on September 15, 2020 to discuss the logistics of the hearing.

This constitutes the decision and order of the Court.

Teachers Walking Out at Queens MS when not told of Positive Case - this is a precursor of more to come

My school has a positive COVID case on our staff.  The DOE knew about it yesterday by 2pm, but didn’t notify anyone on staff. We learned about it from our UFT chapter leader.  We didn’t get any of the test and trace protocols the DOE is claiming to provide.  We picketed this morning and now a smaller core of staff is refusing to enter the building and demanding PD be held remotely. Other staff are trickling out and joining us as things go on.  We clap whenever new staff members join.  We will picket again at lunchtime. Lots of people asking how they can support call 311 and report how alarmed you are about the conditions at IS230, and the DOE’s failure to provide promised track and trace protocols.

I’m looking forward to a response from the UFT. Strong support for walkouts like this would give the leadership some Creds which have been severely damaged.

https://morecaucusnyc.org/2020/09/11/more-daily-bulletin-4-september-11-2020/?fbclid=IwAR0ZNOq14ZMzWshcbefKWFZ6iT7z0VdFGLElRoVgTBWDm7QJlJVKcBJEWoA

Opening Day Chaos - UFT Leaders Under Attack for Deal, Losing support of rank and file, Weak School Safety Inspections left Chapter Leaders Out

 Until today, everyone could put blame on the DOE and de Blasio for the chaos with secondary blame going to the UFT. But now the UFT has signed up as a full partner to the chaos and the blowback will be deep.

Norm here -- September 8, 2020, 1PM - and heading to an empty beach.

Yet, I am more angry at the union than I am at the DOE.  -- -----Anon teacher recently activated by the crisis.

Teachers like this - rank and filers and never active represent a major threat to the union leadership.

You should not run a union top-down. You cannot organize a strike top-down....But even if a strike had been effective in shutting the system, a weak strike would have done incalculable damage to the union in the long run......  All the safety issues matter – but we still will have schools with students arriving – and our plans are not good enough to make them run. Yes, we don’t have the staffing. And no, that does not give the DoE pause. September 21? They will blame on the principals.....jd2718  - Jonathan Halabi

Jonathan is a longtime activist - but if you unite the newly activated with the older activists (as I'm seeing signs of) - whoa, Nellie.

Reports have been coming in all morning with how bad things are in so many schools. I'm on some private chats with people sending in reports and photos on non-working ventilation systems certified by the DOE and UFT.

ICEUFT Blog

PROTEST OUTSIDE A BRONX SCHOOL - We have our first report of a day 1 picket from a high school in the Bronx. Remember how President Mulgrew said no meetings in auditoriums?

I've been monitoring school chatter from many directions since the pandemic began and for the first time in my over 50 years in the UFT I'm detecting signs of a big defection from the Unity Caucus leadership that goes deep into the rank and file, especially escalated since the UFT deal with the DOE where they made certain guarantees to the membership.

Even within Unity (if Unity ever cracked, it's Katie Bar the Door time).

Hello. My name is ........ and I am the Chapter Leader for ........ High School in Brooklyn, and I am requesting the assistance of every UFT member on this page to demand transparency from our union regarding our safety.

(Full disclosure, I’m a member of the unity caucus, but I do NOT work for the union. I work for my members.)

We were told from the beginning to listen to science and not politics. Our union had a stance until a week ago that certain scientific aspects were necessary if we were to reopen safely. Then Monday, it changed, allegedly because the scientific experts said so.

I sent emails to two different people requesting to see IN WRITING that the scientific medical advice from Northwell Health and Harvard had changed, from those two institutions. I got nothing.

I then spoke to someone at the UFT who told me my request was one person’s request out of hundreds of thousands of members who have other concerns.

So, let’s make it hundreds of thousands of members.

Please call and email the union (not your CLs!!) to give us written proof that their change in demands was not political negotiation, but something scientifically valid and that we will, indeed, be as safe as scientifically possible.

Ugh, I’m gonna so get in trouble for this

Saturday, September 05, 2020 4:39:00 PM

I'm betting she won't be in Unity for long and not for being tossed out but the disgust at the union leadership may be the shove.

And this from a long-time teacher who has become activated in this crisis (as have been many other rank and filers).

.....am going to bed very angry. I have no choice; I don't think I will get less angry any time soon.
I am remote. But I am concerned about my friends and my colleagues. I am not speaking specifically about my school's safety report. So far, I haven't heard about anyone coming out smelling like a rose. Some are worse than others. Many contain information that points to a lack of safety. Many contains too many things that are still unknown. The reports are inconsistent, from one school to the next.
Yet, I am more angry at the union than I am at the DOE. Why? I don't necessarily expect the DOE to keep me and my friends and colleagues safe. I do expect my union to do that, though. Yet, the email that comes with the report, boilerplate basically, says that "between Sept. 8 and Friday, Sept. 18, you, your principal and your school’s COVID-19 building response team will work to address the issues flagged in the UFT school safety inspection. Schools must pass all items itemized in the school safety plan by Monday, Sept. 21, the day students return for in-person instruction. If the school buildings do not pass, staff at that school building must remain remote.
So let me get this right: at least insofar as the boilerplate goes, we are told that it is fine for us to go into the building on Tuesday but that if the buildings do not pass for when students return, school remains remote. So, kids should not be in an unsafe building, but it is okay if WE do.
Moreover, it talks about "if the buildings do not pass..."
I do not see ANY opinion on the reports about whether the buildings passed now. What is the criteria to pass? If we gave our students assignment but did not tell them what the criteria for passing is, children and parents would be up in arms. But teachers are expected to risk their lives for professional development and planning that can easily be done remotely without even knowing what the criteria is for buildings being safe?

These comments are Threats to Unity Caucus hegemony

The UFT is on the cusp of the current situation having a long-time impact on the union where in the next series of UFT elections, Chapter leaders and delegates next May/June, and UFT general elections in spring 2021where for the first time if there is a serious non-divided opposition challenging Unity and a serious campaign is run, some deep inroads may be made though Unity would still win due to the enormous retiree vote which goes to Unity by over 85% - and will not wear away very much because retirees are so happy - though some of those forced out by the virus may be pissed. MORE which had been sort of floating along for the past few years has been juiced by the pandemic and is on a roll - MORE Daily Bulletin #1 -). And even sleepy Solidarity has taken court action. (UPDATES FROM UFT SOLIDARITY ON COURT CASE). 

And New Action is still functioning - I and other ICE retirees meet up with some of them regularly. Gee - imagine putting all the energy together into a real challenge to Unity - but don't count on it - caucus nationalism takes priority.

Now if the leadership manages to get fed up enough by DOE incompetence they have a small window to recover. But don't expect it - expect them to act more like the DOE than a militant union.

Now we activists in the UFT have never trusted the leadership and always saw them as complicit with the DOE just as they were in March when they initially backed deB attempt to keep the schools open.

I assumed that the leadership at least had some sense and knew the political costs internally of they screwed up again. But I guess not. I don't necessarily disagree with Mike Schirtzer's comments (Mike Schirtzer, Lone Ex Bd Vote NO - 99-1 - He Explains) that there are some good intentions in the leaders. I hear from some sources that in many ways they are so distant from the members, their good intentions disappear into incompetence and ineptness. And clueless as to how to really organize people to fight back. Ideologically they believe in the chain of command which puts they too far from the members,

Many UFT critics have dogs in the race so the attacks on Mulgrew sound like propaganda and paint him as evil. I tend to see the UFT leadership, in power for 60 years, with a level of arrogance but also without the DNA for serious resistance. This goes beyond Mulgrew or Randi -- Shanker would have done us no better at this time. (After the big 60s, Al lost his nerve post 68 strike.) My 1975 experience gave me so many clues as to how the leadership operates - and it hasn't changed in many ways. (see the NYT headline from Sept. 17, 1975 - https://timesmachine.nytimes.com/timesmachine/1975/09/17/issue.html for a hint of what to come when cuts hit us

Their ability to respond effectively is extremely limited. Strikes and militancy (bombast from the top is not militancy) have been bled out of the fabric of the leadership.

Jonathan Halabi,  co-chair of New Action is long-time CL and activist 
His latest makes some important points about the DOE and UFT. They Did Not Keep Us Safe in March; Do Not Trust Them Today!

Andy Cuomo took way too long in March to start shutting things down. Remember him overruling de Blasio’s “shelter in place”?
But the Mayor wasn’t better. In March Bill de Blasio kept the schools open when they needed to be closed.
Chancellor Carranza heard reports of COVID-19 in buildings, and he and his cronies hushed them up, and didn’t close the buildings.
Someone, maybe everyone on the 14th floor of 52 Broadway knew we had confirmed cases in schools, and went to court to force the closures…ok…  But in the meantime allowed UFT members to walk back into those buildings.
In May I examined their record from March, and suggested putting protection in place for September. It did not happen.
Who is keeping you safe tomorrow?

How true -- all summer people have been talking about DOE/DeB incompetence and I have taken the position the UFT was gathering public support to keep schools remote. Then they just made a deal and that deal is not looking great on the first day.

Since this post is more about the UFT than the DOE and the impact on the union let me take you back a few days to Jonathan, who actually takes the time to analyze some of the reasons for the seeming UFT paralysis without polemics.

JD2718.  One his interesting recent posts dug deep. Read it all but below are some excerpts:

Jon gets right to the DNA of dysfunction in the UFT. Call it the chain of command.

What happened? (https://jd2718.org/2020/09/05/what-happened/)

September 5, 2020 pm30 1:40 pm

That’s easy. You should not run a union top-down. You cannot organize a strike top-down.

BINGO!!! 

By August 27 and 28 it was clear to many that this was not going right. Instead of vagueness about a schedule for voting, discussion was filtering to the members that it would be Exec Board 8/31 and Delegate Assembly 9/1, and there was not time for a membership vote. After the DA , the move would be to court for an injunction against an unsafe opening.
I was worried about what was going on. I wrote to Mulgrew and the officers, urging them NOT to skip a membership vote:

BINGO 2.0 -- the leadership is either afraid of a membership vote of just clueless.

Why the deal?

From the mayor’s side, there really are serious problems with the plans. September 10 (which had been scheduled to be the first day with kids) was looking like a disaster. He bought time, and he bought labor “peace” without much cost. From the UFT leadership’s standpoint, the strike threat was not nearly as effective as they had presumed it would be, and they did not have confidence they could pull off a job action. Under those circumstances a deal might not have been such a bad move.
An alternate explanation comes from Mike Schirtzer, one of three non-Unity Caucus members on the Executive Board, and the only one to vote against the deal:

It was the very threat of a job action and litigation by our union that forced this mayor to come to the negotiating table to address the issue of keeping our children and educators safe. Before that point he wouldn’t budge.

I [Jon] agree with most of Mike’s reasoning, and appreciate his willingness to speak openly about it. But I don’t agree with his assessment that the threat was effective (and I dismiss the UFT leadership’s similar assessment as self-serving)

I also don't agree with Mike but I may disagree with Jon -- I don't think the UFT ever intended to pull of a strike and would be willing to eat a bowl of shit if it was put in front of them --- But I did think they had the public, politicians and most teachers with them -- I mean they could have used scare tactics to gain support but didn't. They are just not capable of organizing and running a strike especially in these conditions (picket lines? 25% of teachers home anyway with conditions? travel issues?).

What would have happened if the UFT had moved forward towards a job action? 

Given the very tight tolerances for scheduling (unworkable, actually) a school might not be able to function, even if everyone shows up. But 30% staying out (beyond those with accommodations) might have shut a school. And the real number would have been higher. But how much higher? Some schools, maybe not all, but probably most, would have been unable to function. A strike, even with the preparations looking half-assed, would probably have shut the system.

Here is where MORE differs with Jon - they want any kind of strike - even half assed -which actually would help MORE - the more chaos in the UFT, the better they do.

A strike might have shut the system, would probably have shut the system, but without any guarantee. And a few entire schools might have kept working – a few at first. With time a weak strike (and there would have been time) could have easily become weaker.

But even if a strike had been effective in shutting the system, a weak strike would have done incalculable damage to the union in the long run. It would have divided us. It would have made member bitter at member, and further diminished trust in the leadership. A short term win was possible. But a long term, expensive loss was in the cards.

Couldn’t there have been a better threat?

Yes. But that would have required a different approach.

What’s in the Deal?

Random testing, of a pretty big chunk of staff and students (UFT had wanted 100%, before school began)
Delayed opening, teachers 9/8, remote for sign-in purposed 9/16, full instruction 9/21
(Vagueness warning) – some ability for a chapter to have safety issues addressed before going into a school to walk out.

This where I like Jon's analysis - a balanced approach

Is this a sellout?

This deal? No. Each one of those points is something we should want. Better testing. More time to prepare for the year. And some ability for chapters to
We can be disappointed that it is not nearly enough. It is not.
But we also know that we averted a risky strike that could have weakened us in the long run.
Of course, there is more. We still have plans that won’t work. We have unnecessarily risky maskless instructional lunch. We have 1800 plans devised by 1800 principals, some of whom I wouldn’t trust to tie their own shoes.

Are we done?

This is not the last deal for this year. If schools open September 21 there will be huge problems and issues all over the City. But we have a few more days. We want to teach. We want the teaching to work, as best as it can under these circumstances. And we want to keep all of us, ourselves, our families, our schools, our colleagues and our students, safe. We will ultimately need to be remote.

Jon is certainly right -- there may be further deals being cooked up right now - and when the first outbreak hits, the lack of trust in the DOE and now increasingly in the UFT may lead to -- how do you spell

W-I-L-D-C-A-T

AFTERBURN
Some sites to check out

• https://sites.google.com/view/teachersofnyc/safety-reports
• 
  
• https://nypost.com/2020/09/05/nyc-adviser-on-reopening-allegedly-hasnt-set-foot-in-a-school-yet/
• 
  

• ICEUFT - MULGREW SAYS SCHOOLS HAVE UNTIL SEPTEMBER 21 TO PASS FULL SAFETY INSPECTION BUT STAFF REPORT TO BUILDINGS SEPTEMBER 8 

• Teachers Will Ask Judge To Block In-Person Learning At NYC Public Schools