FILED: NEW YORK COUNTY CLERK 09/26/2013

NYSCEF DOC. NO. 1

INDEX NO. 451734/2013 RECEIVED NYSCEF: 09/26/2013

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-against-

SUPREME COURT OF THE STATE OF NEW YORK

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INDEX NO. DateFiled: September26,2013
SUMMONS

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEV/ YORK,

Plaintift
LTNITED FEDERATION OF TEACHERS, Defendant

YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer on the PlaintifPs attorney within 20 days after the service of this
summons, exclusive of the day of service (or within 30 days after the service is complete

if this

summons is not personally delivered to you within the State of New York); and in case of your

failure to appear or answer, judgment

demanded in the complaint.

will be taken

against you

by default for the relief

The basis for venue is the place of Defendant's business and the county in which

the action arose pursuant to CPLR 504(3), which is New York County.

Dated:

New York, New York September 26,2013

MICHAEL A. CARDOZO
Corporation Counsel of the City of New York Attorney for Plaintiff 100 Church Street, Room 2-143 New York, New York 10007-2601 (212) 3 72

By:
Assistant Counsel

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::it:::v_Yt:li
-against-

SUPREME COURT OF THE STATE OF NEW YORK

...........x
COMPLAINT
Index No.

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEV/ YORK,

Plaintift

LINITED FEDERATION OF TEACHERS,

Defendant.

Plaintiff, Board of Education of the City School District of the City of New York ("DOE"), by and through its attorney Michael A. Cardozo, Corporation Counsel of the City of
New York, as and for its complaint against Defendant United Federation of Teachers, alleges follows:
as

1.

This action seeks a determination that the United Federation of Teachers

("UFT") has violated a validly enforceable agreement between the DOE and the UFT which
increased the number of arbitrators (also referred to as "hearing offrcers") who sit on a rotational

panel. Arbitrators from this panel preside over disciplinary

hearings held as

a result of

disciplinary charges brought by DOE against nonsupervisory pedagogical personnel pursuant to

New York Education Law Section3020-a.

2.

Under New York Education Law Section3020, the DOE and the UF-T are

authorized to modify, by agreement, the disciplinary procedures set forth under Education Law Section 3020-a, including, but not limited to, the procedures by which disciplinary charges are

filed and adjudicated, as well as the procedures for disciplinary hearings and the selection of
arbitrators.

3.

The UFT has breached such a valid and enforceable agreement, entered

into between the parties, that acts, inter alia, to modify the arbitrator selection process set forth in Education Law Section 3020-a(3).

4. 5.

The UFT has continually failed to agree to a full panel of 39 arbitrators as

mandated by the agreement.

Where, as here, a

full panel has not been

agreed upon, an alternative

arbitrator selection process, utilizing a third-party, is available. However, the UFT has now
refused to participate even
agreement.

in this alternative arbitrator selection

process provided

for in

the

6.

The UFT's failure to agree violates the explicit terms of the parties'

agreement, and frustrates

the agreement's stated purpose the timely adjudication of

disciplinary charges to obviate the backlog of disciplinary cases, which unnecessarily impacts
schools, students, and, as most charged employees remain on payroll throughout the disciplinary
process, the DOE's measured fiscal resources.

7.

Moreover, as this agreement serves to modify the disciplinary procedures

under Education Law Section3020-a, the UFT's twofold refusal -- to either agree to a full panel

or to engage in the very process designed to resolve such disagreement -- thwarts the express
statutory imperative of that provision: the expeditious adjudication of accusations of misconduct
and incompetence against individuals charged with the education of children in New York City

public schools.

THE PARTIES

8.

Plaintiff DOE is organized under and exists pursuant to the New York

State Education Law, and maintains its principal place of business in New York County.

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9.

Defendant UFT

is an unincorporated labor

organization that

is

the

recognized bargaining agent

for all

nonsupervisory pedagogical personnel and classroom

paraprofessionals employed by the DOE,

THE APRIL LETTER AGREEMENT

10.

The DOE and the UFT are parties to a letter agreement, dated April

15,

2010 (the "April Letter Agreement"). A copy of the April Letter Agreement is annexed hereto as

Exhibit ("Ex.") "1."

1

l.

The April Letter Agreement sets forth, and otherwise memorializes,

various accords between the DOE and the UFT conceming the procedures for investigating
alleged acts of pedagogical personnel misconduct and adjudicating any resulting disciplinary
charges against personnel brought pursuant to Education Law $ 3020-a.

12.

In reaching the April Letter Agreement, the DOE and the UFT sought to

expedite the process by which disciplinary charges are adjudicated, thereby averting lengthy delays, reducing the large backlog

of disciplinary

cases, and ensuring compliance

with

the

procedures set

forth in the parties' collective bargaining agreement ("CBA") and

the

requirements mandated by Education Law Section 3020-a.

13.

Under Education Law Section 3020, the DOE and the UFT may modify
such

by agreement the procedures set forth in Education Law Section 3020-a and, "[w]here
procedures are so modified

. compliance with such modified procedures shall satisfy any

compliance

provision

of this chapter that requires

with section 13020-al of this

article."

Education Law $ 3020()(a).

14.

Indeed, and as authorized by Education Law Section 3020, Article 2l(G)

and provides

of the parties'CBA expressly pertains to "Education Law $ 3020-a Procedures,"

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that "[t]enured teachers facing disciplinary charges filed . . . will be subject to Section 3020-a of the Education Law as modified by paragraphs 1-10 below."

15.

Under Article 21(G) of the CBA, the DOE and UFT have established

rotational panel of arbitrators, (referred to in the April Letter Agreement as "hearing officers").

Arbitrators from this panel preside over pedagogical personnel disciplinary cases, conduct the evidentiary hearings held pursuant

to

Education Law

3020-a, and, when hearings have

concluded, determine whether charges were sustained and, as warranted, assess an appropriate
penalty to be imposed by the DOE.

16.

Under the April Letter Agreement, the DOE and the UFT agreed that the

number of arbitrators on the rotational panel would be increased as follows: Incompetence Cases shall be heard by a panel hearing officers.

of of

14

Misconduct Cases shall be heard by a panel hearing officers.

25

April Letter Agreement, Ex. "1," at 6.

17.

The April Letter Agreement further provides that

hearing officers, including the possibility of agreeing to increase or decrease the number of hearing officers on either the incompetence or misconduct panels on either a temporary or permanent basis, and (iii) to discuss the appropriateness of the number of probable cause arbitrators, including the possibility of agreeing to increase or decrease the number of probable cause arbitrators. If the DOE believes there is a need for more hearing officers to comply with the timelines set forth in this Agreement, it shall request that the
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Representatives of the UFT and DOE shall meet monthly, or less frequently if the UFT and DOE agree, for the first year of this Agreement and at least twice a year thereafter (i) to agree on the number of hearing offlrcers hearing expedited cases, (ii) to discuss the appropriateness of the number of

UFT agree to increase the number of

hearing officers and the UFT shall not unreasonably deny an increase,

April Letter Agreement, Ex. "1," at7., THE UFT'S BREACH OF THE APRIL LETTER AGREEMENT

18. 19.

At no time since the parties' entered into the April Letter Agreement

have

there been a full panel of 39 arbitrators, despite repeated insistence from the DOE.

In

201 1-2012, DOE and

UFT were able to seat 24t arbitrators. In 2012-

2013, DOE and UFT were able to seat 20 arbitrators, However, all of these arbitrators were not
seated at the same time, and some did not serve the

full school

year.

20.

Beginning in July 2013, given the failure to reach a full panel in the prior

years, a consequent preexisting backlog, and the anemic pace at which selections had proceeded, due to the UFT's intransigent delay, the DOE sought to expedite the selection process, with no
SUCCESS

21.

By letter, dated September 19,2013, Dennis M. Walcott, Chancellor of

DOE ("Chancellor Vy'alcott"), wrote to Michael Mulgrew, President of the UFT, with respect to
the number of arbitrators who

will hear disciplinary cases under Education Law $ 3020-a for the

2013-2014 school year. A copy of the September 19,2013,letter is annexed hereto as Exhibit
,r2.r,

22.

Chancellor Walcott advised that, under the April Letter Agreement, the

"parties agreed to create two panels of a total of 39 arbitrators to hear 3020-a cases (25 for
misconduct and 14 for incompetence)," and noted that "[t]o date, only 18 arbitrators have been

' The 201 l-2012 panel decreased to 18 arbitrators due to resignations,

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appointed to the 3020-a panels, far below what was agreed to by the parties." September 19, 2073,letter, E;x. "2," at

(emphasis supplied).

23.

Chancellor Walcott further advised that the delays caused by the UFT and [New York State United Teachers] for this school year, as well as in prior years, undermine the intent of the April 2010 Letter Agreement, and have caused a backlog to develop and continue to grow. The current backlog of hearings needing assignment to an arbitrator far exceeds the number of cases that could be heard in a school year by 18 arbitrators. The arbitrators assigned to hear misconduct cases already have several cases assigned to them. Additional cases are being prepared to be charged or have been charged and will need to be assigned to arbitrators, fuither increasing their caseloads. Likewise, the arbitrators handling incompetence cases aheady have cases assigned to them. Adding additional cases to the arbitrators' calendars directly impacts the ability to resolve cases in accordance with the timelines in the collective bargaining agreement, its amendments and the Education Law.

September 19, 2073, letter, F,x. "2," at

24.

The reduction and future prevention of this backlog, as well as compliance

express justifications

with statutorily mandated timeframes, were

for the DOE and the UFT to

increase the arbitrator panel from 20 arbitrators, fixed under Article

2l(G) of the parties' CBA,

to 39 arbitrators, provided under the April Letter Agreement.

25.

In his September 19,2013,letter, Chancellor Walcott noted that the UFT's

"continued failure" to agree to a full complement of arbitrators had delayed "timely adjudication

of charges," resulting in untenable salary and benefit costs to the DOE. See September 19, 2013,
letter, 8x, "2," at
7,

26.

Moreover, Chancellor V/alcott observed that the

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UFT's actions appear motivated by a desire to force the DOE to agree to a modification of the April Letter Agreement which would reduce the total number of arbitrators assigned to hear 3020-a cases to a number well below that in the April Letter Agreement. The reduction in the number of arbitrators sought by the UFT would result in a panel that is entirely inadequate to address the existing backlog of 3020-a cases and will ensure that there will be a backlog of 3020-a cases going forward.
September 19,2013,letter, F,x. "2," at 7-2.

27.
that

Chancellor V/alcott advised the UFT, in his September 19, 2013, letter,
hearings can

"it is critical that additional arbitrators be selected immediately in order that

commence and we can keep the backlog from growing." September 19,2013, letter,

Ex."2,"

at

2.

Further, Chancellor Walcott noted that, in an attempt to resolve the issue, the DOE and UFT

had discussed a possible decrease to the number of arbitrators, for the 2013-2014 school year,

with the DOE offering to seat 30 arbitrators, for the present school year only, Id.

28.

Under Article 2l(G)(2) of the CBA, which, by its terms, modifies the

disciplinary procedures set forth in Education Law Section3020-a, in the event that the DOE and

UFT cannot agree to a full complement of arbitrators on the arbitration panel, "additional
impartial arbitrators shall be selected by the parties in accordance with the American Arbitration
Association (AAA) procedures (strike and rank method) from list(s) provided by the AAA until
the desired number , . . is reached to establish such permanent panel,"

29.

Accordingly, in the closing paragraph of his September 19,2073, letter,

Chancellor Walcott sought the UFT's immediate confirmation that the DOE would agree to a
panel of 30 arbitrators, and that the selection of all remaining arbitrators would be completed by October

4,2013. If the UFT failed to agree, Chancellor Walcott advised, the DOE would

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pursue all legal remedies available to

it including,

but not limited to, invoking its right under the

collective bargaining agreement to use the arbitrator selection process provided by the American Arbitration Association (AAA) procedures.
September 19,2073,letter, F;x. "2," at 2 (footnote omitted),

30. By letter, dated September 20, 2013, Michael Mulgrew responded on

behalf of the UFT to Chancellor Walcott's September 19,2013,letter. A copy of the September

20,2013, letter is annexed hereto as Ex. "3."

31. In that letter, despite declaring the UFT's avowed commitment to the
terms of the April Letter Agreement, the UFT failed to mention, much less agree to, either the

DOE's proposed panel of 30 arbitrators, or an adherence to a October 4,2073, deadline for full panel arbitrator selection. The UFT's letter studiously ignored these subjects, and instead
focused on its stated preference for a mediation process, in lieu of disciplinary hearings, as well as the UFT's view

-- previously

expressed, as noted

in Chancellor Walcott's September

19,

2013,letter -- that the UFT believed the panel required fewer arbitrators. See September 20,
2013,letter, which is annexed hereto as Ex, "3."

32.

Accordingly, as the UFT's September 20,2073, letter made clear that the

parties cannot agree to a full complement of panel members, by letter, dated September 23,2013,

the DOE wrote to the American Arbitration Association ("AAA"), pursuant to CBA Article 2l(G)(2), to request its assistance in f,rlling the panel of arbitrators that preside over Education

Law $ 3020-a hearings. A copy of this letter, dated September 23, 2013, from Courtenaye
Jackson-Chase, DOE General Counsel, to Jeffrey T. Zaino, AAA, is annexed hereto asx. "4."2

The September 23'd letter, includes, as an exhibit, the portions of the CBA cited herein

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33.

On September 24,2013, the AAA advised the DOE and the UFT that it

would hold a conference call on September 26, 2013, and likely could begin the alternative
selection process on September 27,2013.

34.

By letter, dated September 24, 2013, the UFT advised the AAA --

and

DOE -- that "there is no need for AAA involvement in the selection process and that [DOE's]
request is in violation of the applicable collective bargaining agreements." UFT letter, dated
September 24,2073, from Adam S. Ross, UFT General Counsel, to Jeffrey
annexed hereto as Ex.

T. Zaino, AAA,

"5."
The UFT's September 24rh letter suggested that the parties had yet to reach

35.

the point at which agreement on arbitrators had failed and, incredibly, asserted that as the parties

had agreed to fourteen arbitrators for the 2013-2014 school year panel, and because lists
proposing twenty additional names of arbitrators had been exchanged, "there is no reason to believe that additional mutually agreeable arbitrators cannot be selected. . .
u5r"

."

UFT letter, Ex.

at2.

36.

Yet, even assuming an unlikely consensus on the twenty proposed names,

with only fourteen arbitrators agreed upon, rudimentary math shows that the number required for
a

full panel -- 39 -- will not be reached.

37. 38.

Moreover, the UFT's September 24th letter purposely ignores critical

details, thereby proffering a rosier scenario than reality presents.

Accordingly, by subsequent letter, dated September 25,2013, to the AAA,

the DOE responded to the UFT's misleading assertions, and clarified -- and contextualized -- the past and present status of arbitrator selection.

A copy of this letter, dated September 25,2013,

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from Courtenaye Jackson-Chase, DOE General Counsel, to Jeffrey T. Zaino, AAA, is annexed
hereto as Ex. "6."

39.

Among other things, the DOE informed AAA as follows:

The last time that the UFT and DOE were able to mutually agree and select a panel of arbitrators was during the 2010-2011 school year. Pursuant to the April 15, 2010 agreement, both the DOE and the UFT selected and empaneled the full complement of 39 arbitrators during that school year. We have, however, been unable to agree on the selection of 39 panel members in subsequent school years 20112012 and 2012-2013. The inability to jointly select a full panel has contributed to the current backlog of well over 400 cases, with employees waiting many months before their disciplinary cases can be heard, well over the 60 days mandated by the Education Law and the April 15, 2010 agreement.
September 25,2013, letter, Ex. "6."

40.
assertions to the

The DOE fuither corrected the notable misperception caused by the UFT's

AAA:
school year, the DOE and UFT invited 14 arbitrators to the panel, it is imperative to note that only 5 arbitrators accepted the invitation. This year, a total of 14 were invited and thus far only 7 have accepted. This month, the DOE and UFT proposed arbitrators, but none have been invited as the UFT has not agreed as to when they will be ready to move forward with the selection ptocess. At the current rate of proposal and selection we will be well within the next school year before a panel is seated. This is unacceptable, as, in addition to the large backlog of cases, the DOE already has more than 150 cases to move forward through the 3020-a process this year and it is only September.

V/hile

it is true that during the 2012-2013

September 25, 2013, letter, Ex. "6."

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41.

Thus, the DOE reiterated its request to the AAA for assistance, under its

procedures, in filling the full arbitrator panel

It is clear that the parties have not been able to reach agreement in seating the full complement of arbitrators for the 3020-a panel for the past two school years and there is no reason to expect that this year will be any different. V/e must act swiftly to seat a full panel to comply with the letter and spirit of the April l5th agreement, and we again request that the AAA, in accordance with the agreed-upon procedures for arbitrator selection for Education Law 3020-a hearings with the UFT, commence the strike and rank process until the 39 arbitrators are selected for the panel.
September 25, 2013, letter, Ex.

"6."

42. 43. 44.

On September 26,2013, the AAA advised DOE that, because the UFT did

not consent to utilizing the AAA process to seat a full panel, the AAA would not proceed.

The UFT's continual failure to agree to a full compliment of arbitrators

has resulted in a backlog of approximately 400 cases.

Pursuant to the CBA, and the April Letter Agreement, while awaiting their

disciplinary hearing and pending

the arbitrator's ultimate post-hearing determination,

nonsupervisory pedagogical personnel continue

to receive full

salary and benefits, with

exceptions only for certain serious misconduct and sexual offenses involving students or minors.

45.

Thus, by failing to agree to a full arbitrator panel, the UFT grossly delays

the adjudication of disciplinary cases, and causes an untenable backlog of charged personnel, awaiting hearings -- for months on end -- during which time they are entitled to full salary and
benefits,

46.

This harms the interests of schools, students, other teachers, and the DOE.

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47,

The DOE's invocation of the alternative selection process, utilizing the

ensure the prompt selection

AAA's strike-and-rank procedure, will

of a full

complement of

arbitrators for the panel, and, once established, will further ensure compliance with the mandates of Education Law Section 3020-a. AS AND FOR A FIRST CAUSE OF ACTION

48,
paragraphs numbered

Plaintiff repeats and realleges each and every allegation set forth in

"l" through"4T" as if fully set forth herein.

The UFT has breached the April Letter Agreement by continually refusing

49.

to agree to a full panel of arbitrators, thereby delaying timely adjudication of disciplinary charges against DOE employees and, resultantly, imposing additional salary and benefit costs on the DOE, a needless tax on its limited budgetary resources.

50.

Moreover, the April Letter Agreement and the provisions set forth in

Article 2l(G) of the CBA constitute express agreements between the DOE and the UFT to
modify the disciplinary procedures contained in Education Law Section 3020-a, as authorized by
Education Law Section 3020. Thus, the UFT's refusal to participate in the alternative selection process, outlined

in Article 2I(G)(2) of the CBA, and previously practiced by the parties,

constitutes not only

breach

of contract, but also a violation of

proceclural agreements

functionally equivalent, by virtue of Education Law Section 3020, to statutory mandates.

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WHEREFORE, Plaintiff DOE demands judgment:

a,

Adjudging, determining, and declaring that the UFT breached the April
Letter Agreement and CBA Article 2l(G)(2);

b.

Directing the UFT to participate in good faith, and pursuant to CBA

Article 2l(G)(2),

in

selecting additional impartial arbitrators in

accordance with the American Arbitration Association (AAA) procedures

(strike and rank method) from list(s) provided by the AAA until 39
arbitrators are selected to establish the parties' permanent panel.

c. Such other, further, and different relief as this Court may deem just and
proper, together with the costs, including attorneys' fees,
disbursements of this action. Dated:
and

New York, New York September 26,2013

MICHAEL A. CARDOZO
Corporation Counsel of the City of New York Attorney for Plaintiff 100 Church Street, Room 2-143 New York, New York 10007-2601 (212) 356-2472 By:
Counsel

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