Video: We've Got The Power - Vote Them Out

 

Vote Them Out

 

This Trump administration is just too much. We couldn't just sit in our basements on our unemployed asses, watching the news, the debates, and just about everything happening in our failing democracy. It was hard to refrain from throwing something at the President of the U.S. and those smug self-serving Senators on the screens. We had to do something. Instead of breaking something expensive we created a song. And our friends created a video. If there are kids in the room, you might want to play our other, slightly cleaner, version. (We've Got The Power [Clean Version] https://youtu.be/jZSguzT0rwY

 

Thank you. Mothers of Exile

 

 

Retro-gate: What did Mulgrew know and when did he know it? Unity brags about "win"

James Eterno: Jeff asked - "Was it imposed or an agreement?" Waiting to July was an agreement between the city and UFT. We have proven that by posting the consent award. Page 6, Line 2 says "it is agreed." What else do you need to know?

jeff said... I understand. I wanted Mulgrew to answer that. And explain why he agreed.   ---- ICEUFT Blog: LIVE BLOGGING FROM OCTOBER VIRTUAL DELEGATE ASSEMBLY

Norm here - October 17, 2020

Generally, I've been laying back and trying to give Mulgrew the benefit of the doubt on the school closing situation. I think he is trying to walk a fine line politically and I've even heard from some people who are critical generally about the union leadership who are not happy with the kind of attacks calling for all schools to be closed - and go remote until - WHEN? Mostly likely the entire year in reality but they don't want to say that out loud. I've been wanting to write more about this push back but since there are real reasons to keep school closed due to the insane hybrid approach I slip back and forth depending on the last person I hear from. 

BUT - ON THE ISSUE OF RETRO PAYMENTS - IT'S UNITY AS USUAL.

So there is some confusion regarding the Retro pay dispute that raged in the UFT when de Blasio decided to cancel the final payment. The UFT seems to be declaring victory for getting half of what people were due with the rest to be paid in July. I initially wrote about it where I reviewed the opposition to the 2014 contract that gave people this deal: City Love Letter to Mulgrew - No Retro Payment to UFT Members - It's Only the Beginning

The UFT bragged that they made sure to have the right to go to arbitration and the ruling was issued immediately -the arbitrator split the baby 50-50, as they often do, an argument we've often made about relying in arbitration. The union is taking the 'Half loaf better then nothing" position. The critics are saying WTF?

De Blasio showed the first signs of intelligence in a long time. Just cancel a wing of a contract and end up only having to pay half with the rest an interest free loan. (I'm sure he's ready to try this with the police union.) Let's get creative: What else can be canceled from the UFT contract and get a 50-50 split? How about eliminating lunch hours for teachers and settling for 25 minutes instead of 50? Just joking. He'd never dare tamper with food. Or better yet, eliminate Easter vacation days without pay - ooops, been there done that. Why not take a shot at Xmas week - what does deB have to lose?

Arthur has a different view at NYC Educator

I disagree about the retro being so awful. I actually anticipated being totally screwed. I remember that rules went out the window during the last financial emergency, and I wrote about it a little here. I've also seen arbitrators do things that border on insane. So while I would not call this a victory, I was quite relieved it was made into what it was. It could've been way worse, and I really expected it would be.

He raises the last fiscal emergency that I lived through in 1975 where the contract was mush - but we didn't have an arbitrator - they just slashed us to bit then, but if you've been reading this blog you know the option of declaring a fiscal emergency is still in their bag of tricks. 

The union seems to be celebrating how smart they were to be able to go to arbitration. I would expect that such a clear abrogation of a contract would lead to a better outcome than 50-50 but once the union agrees to go to an arbitrator they pretty much always split the baby -- this is a pretty bad precedent for the future if the city/DOE wants to screw us.

Now some people don't believe this even went to an arbitrator but was a pre-agreement between de Blasio and Mulgrew - I heard conspiracy theories that Mulgrew's initial video announcing the retro-kill and publishing the letter he was sent acting shocked was phony- that he knew for days or weeks and had pre-agreed to the 50-50 split and the entire arbitration deal was a game.

Eterno goes through the timeline here:

READ THE ARBITRATION CONSENT AWARD FOR YOURSELF TO KNOW THIS WAS A UFT-CITY DEAL TO DELAY OUR MONEY AND NOT A RULING BY AN ARBITRATOR

I continue to be suspicious by how quickly the UFT and the City were able to come to an agreement to delay payment for work we did up to 11 years ago that was due to be paid this week. Half of that money will not come until the end of this month and the other half will have to wait until the end of July 2021 to be received. The delay will be almost twelve years by then from the time we did some of the work.

No other city union has agreed to postpone their back pay. If the UFT said to Mayor de Blasio, "Go ahead, make my day," when the mayor tried to withhold money the city owed us, the city would have had to back down. There would be consequences for the city's credit rating if the city refused to pay one of its bills. In court, we could demand interest. We would have had a very strong case.

Michael Mulgrew is trying to say that independent Arbitrator Martin Scheinman made the decision to split the lump sum payments due this month in half.

The arbitrator ordered nothing. Arbitrator Scheinman's own words:

I implored and pressured the parties to explore a possible resolution to this matter. 

The parties then negotiated a deal and asked Scheinman to write it up as a "consent award."

Well, there was this no layoff deal for the school year, which is interesting since the city is supposedly looking to hire teachers and probably can't lay people off until the end of the year. It's all a crazy mess, but what else is new?

Now Mulgrew has been getting pretty unpopular due to his agreement to keep schools open but was hanging in there with no major in school outbreaks yet. While we in the opposition wing have always been critical of Unity and have managed to generally garner in the 10-12,000 votes in UFT elections over the past 30 years (discount the massive MORE screw-up in the 2019 election which took votes down to historic lows), there is a sense out there that things have reached beyond the usual suspects in opposition to Mulgew as I've seen new voices popping up from the rank and file. Some in Unity think if Mulgrew ran in an election now it could be ugly - which is why

I am speculating about Mulgrew's future as UFT leader - See Speculation on Weingarten and Mulgrew futures - Part 1. Part 2 and 3 and 4 are coming - Hey, don't be so impatient I'm busy resting - or hiding from Covid. 

Why don't we submit Mulgrew's future to an arbitrator?

Eterno still questions the Mulgrew position:

ICEUFT Blog

MULGREW CONTINUES TO INACCURATELY CLAIM ARBITRATOR (NOT MULGREW) GAVE UP HALF OF THE RETRO UNTIL 2021 -

UNITY Caucus is Trumpian

I even heard of some internal Unity criticism of Mulgrew behind the scenes. One Unity hack attacked me on FB for daring to mention this: "Don't listen to Norm Scott, she said. We had to listen to him for too many years. We are united. UNITY FOREVER." Yeah, Unity forever will justify ANY act of the leadership and when the leadership reverses itself it will justify that -- positively Trumpian.

Are the Unity hordes running scared - see evidence in this Unity-UFT promo video. LOL.

James Eterno left a comment on You tube (Unity critics should take up a collection to pay James for working full-time to expose them) and writes about the video here:

NEW UNITY VIDEO CLAIMS UNITY IS MOVING THE UNION FORWARD

A serious bad sign for Mulgew is when people start mocking him as this video by teacher/comedian Gaspare Randazzo - @StandUpRandazzo  - makes fun of Mulgrew talking to the members.

https://www.facebook.com/100008794411844/posts/2466370513666072/?extid=0

City Love Letter to Mulgrew - No Retro Payment to UFT Members - It's Only the Beginning - NOT the Chicago Version - Updated Oct. 9, 2020

Eterno, ICEUFT- CITY STIFFS US ON MONEY THEY OWED US SINCE 2009

The City is refusing to pay the last lump sum retro payment they owe us for work that we did from 2009-2011. Why we agreed to this arrangement to make nice with Mayor deBlasio alluded me when Michael Mulgrew erroneously claimed the city's cupboard was bare back in 2014 when we accepted that awful contract that was twice extended. Now, we are still paying the price...  Back in May 2014 Back in May, 2014 ICEUFT wrote: NEW UFT CONTRACT: RETRO DELAYED = RETRO DENIED WHI...

Oct. 8, 2020 - Mulgrew got a love letter with a bit of a surprise - and just when it looked like he was winning a few things in the open and shut schools wars. Maybe some pay back from de Blasio for not falling in line all the way? After all, with Cuomo punching him, de Blasio needs someone for him to punch and punchy Mike may be just the one - after all, what can he do, strike? These are serious hits for a lot of people esp with two teacher families - 10-20Gs.

Ahhh, I remember it well -- our struggle opposing the 2014 contract where we helped flood many schools and the Delegate Assembly with leaflets urging a NO vote.  We lost to the Unity machine as we often do. See below for Ed Notes extensive coverage of the 2014 contract in May/June 2014.

Below is the video of Mulgrew's response and below that the fan letter.

But first a few words if you are not already depressed. The letter is correct - the city and state are in fiscal crisis and truly going down the tubes. 

Ed Notes predicted massive cuts in education back in April 

• Shades of 1975 - Part 2: The Noblest Strike of The...
• Shades of 1975 - Part 1 - The Coming Crisis for NY...

We even hear talk of a sickout - some are already calling in sick - but only an organized sickout would have an impact - and I'm not sure on the impact on the public and parents.

This pulling of retro pay may be the first shot but not the last - or the least. With massive unemployment and so many teachers pushing for full-time remote and still getting paid, can there be much public sympathy over retro? Well, it is a fundamental attack on the union and its teachers and a threat to every union - except police and maybe fire.

What an opportunity to undermine the union even further and move the agenda to move public schools into private hands? Never miss the opportunity a crisis offers. And charter friendly Cuomo is prepared to pounce.

On Jame's blog there was a few comments ranging from militant strike calls to mild outrage:

The reaction by UFT needs to be militant, not arbitration. One thing was right in Mulgrew's words, "this is unacceptable."

Retro money is owed to people of higher seniority thus are not in the risk of being laid-off. So threat of laying-off will not push us back.

To calls to throw the bum out:

Lydia H. said...

I hope you all will vote for UFT Solidarity in 2022.

To this sign of union "solidarity":

I say let the pink slips start flying. I'm tired of the doe and union always protecting the young people and screwing the older ones. This is our money.

Nice - but watch the pink slips flow when the covid crisis lets up.

Sing it: It's only the beginning.

-------

Ed Notes Reporting in 2014:

• UFT Contract: Why Union Officials Owe Ellen Fox, M...
• Exposing the Charter School BS About Demographics
• UFT Contract Vote Lessons: Number 1- Unity DID NOT...
• SUPPORT LEONIE HAIMSON CLASS SIZE MATTERS BY ATTEN...
• UFT Contract: Vote Predictions - Will the NO Voter...
• UFT Contract: Will OT/PT Chapter Turn it Down?
• UFT Contract: A Day At the Count - What I Learned ...

• UFT Contract: Roseanne McCosh, PS 8X, Urges Collea...

• UFT Contract: Discrimination Against Women on Chil...
• UFT Contract Exit Polls Contradict NY Times Articl...
• UFT Contract: Roseanne McCosh Responds to Unity Ca...
• UFT Contract Toxic PD Spillover: Parents Unhappy -...
  

James at ICEUFT - MULGREW MANGLES DEMOCRACY BEYOND RECOGNITION AT DA AS CONTRACT IS SENT TO MEMBERSHIP-

HOW TO VOTE NO ON ANOTHER SUBSTANDARD UFT CONTRACT

Mulgrew video and letter from DOE last night - 

https://www.youtube.com/watch?v=FI9kFztf7EU&feature=youtu.be&j=172508&sfmc_sub=32881882&l=222_HTML&u=4170646&mid=100022908&jb=6&fbclid=IwAR1oKCdXc5WZfytTL2DVbH5h8j3eobJfcnHv3UHRMXaXJ4Tet8ZjFDpi5go 

 

 

 

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.