Perdido 03

Perdido 03

Wednesday, November 11, 2015

Lawsuit Over Elia/Cuomo Union Busting To Have National Implications

In the spring Andrew Cuomo pushed through a school receivership law that allows the state to take control of "struggling" and "persistently struggling" schools and supersede the union contracts for teachers at those schools.

This week NYSED Commissioner MaryEllen Elia gave the Buffalo schools superintendent the power to "circumvent" union contracts at five Buffalo schools.

The Buffalo News reports the Buffalo Teachers Federation is planning to sue over the move and the lawsuit will have national implications:

State Education Commissioner MaryEllen Elia’s ruling this week that Superintendent Kriner Cash can circumvent the union contract to make changes at receivership schools will likely end in a court battle with one of the most powerful teachers unions in the country. It’s a fight that will be watched across the nation.


Five schools have been deemed persistently struggling: Burgard and South Park high schools, West Hertel Elementary School, Marva J. Daniels Futures Preparatory School and Buffalo Elementary School of Technology. Those schools were given just one year to show demonstrable improvement under Cash before they can be turned over to an outside entity. The district has tried to negotiate changes at an additional 14 schools that were given two years to show improvement. Several other schools were included on earlier receivership lists, but some made last-minute improvements, while others are being phased out.

Elia issued her ruling in a dispute between Cash and the Buffalo Teachers Federation over changes that go against the teachers contract. The law requires the receiver to try and negotiate changes with bargaining units; but in situations where the two parties cannot come to an agreement, the commissioner can intervene.

The BTF, with the backing of New York State United Teachers, will likely challenge the law in court. The union will likely ask for an injunction to prevent the changes from happening. Meanwhile, Cash continues to move forward on plans for those schools and has previously indicated changes could be rolled out in January.

Anybody out there have any confidence the BTF, backed by NYSUT, can win a court battle over the law?


  1. If they get Lederman's husband they have a shot. Wait it's a whole Union and the NYSUT, unless Sean Crowley (read your blog) runs the show, the answer is HELL NO!

    1. Bruce Ledermann for Prez! Head of NYSUT! AFT! NEA!

  2. If they hire black lawyers and throw in a spanish female on the panel as well, there's a chance. If it's an all white lawyer panel, no shot.

  3. Highly unlikely that a win will happen here for our side.

    The fact is that this decision to run to the courts is not particularly smart. By forcing a case like this into the courts, what happens is that you are essentially forcing the issue to an all or nothing circumstance whereas the NOTHING side of the equation results in an established decision that then becomes part of the jurisprudence and legal structure of not only the state, but other states as well. By taking it to the courts you are risking MAKING PERMANENT AND EMBEDDED THE AWFUL SHIT YOU ARE TRYING TO FIGHT!!

    Usually you go to the courts when you are supremely confident that you will win. This DOES NOT MEAN that you merely think you are right and that your correctness will prevail (this is a malady of our side in general). What "confident" means here is that you know who the judge will be and where they know who the other sides' legal council are and how they have a full grasp on every player in the case as well as every potential argument that can be deployed against you. You are also confident that you are clear on all of the relationships the judge has with political forces. Basically, you did your fucking homework like the mob would do. A simple and childish confidence that you are morally, ethically, and in every other way correct on the argument is not what its about. I'd argue that the Buffalo teachers and NYSUT have given zero (0) thought to these things. They are taking their battle, and its a real one, to the one place that can enshrine what they are fighting as near-permanent. That is risky stuff and can deeply enhance our losing of the broader war here.

    What this is really about however is a lack of union force, thought, creativity, action, and engagement over the last 10 years in the fight against reformers. The way to actually handle this situation in Buffalo is strong, deeply thoughtful, deeply planned, creative LABOR ACTION to bring an end to it. Because none of the preconditions exist on the ground in Buffalo or via NYSUT, successful labor action is essentially impossible. Out of this deep-rooted intellectual laziness (being kind), NYSUT etc have recommended taking this to the courts....which is probably the exact wrong thing to do. Lets not forget, one of the reasons labor action exists is to AVOID THE COURTS. The labor movement was built on the basic assumption that the social-political structures of a society can often be so hell-bent against workers, that the legal system is no place to find relief. The courts are a REFLECTION OF THE BROADER SOCIETY, they do not stand outside of it. Labor unions exist almost exclusively because of this one fact. Labor action exists precisely to avoid going to the courts. The old-hand labor folks were sophisticated and smart. They understood this. Now we are seeing fools like NYSUT leadership have kindergarten understandings of the legal system ("they will see that my argument is correct! they are unbiased!"), and this foolishness can and probably will lead to a loss that is even bigger than the problems faced in Buffalo right now, and will of course screw the rest of us in perpetuity.

    Taking this case to the courts is deeply Custeristic and foolish.

    A simple understanding of labor history and the essential precepts of labor organizing would avoid alot of this nonsense.

    1. Totally disagree. We have to challenge nonsense like this in court. We cannot just wave the white flag because we fear losing. We are already losing. NYSUT's leadership is terrible. No one can argue against that fact. However, we have to hope that the lawyers that go into court on our behalf are a lot sharper than the crew running our union.

    2. It wouldn't even get to the point of the courts if Ella believed it would lose.

    3. 5:31PM.
      You may disagree, but its clear that taking this to courts has risks that are simply beyond reasonable. The decision to take it to the courts is a reflection of the lack of creativity of ALL NYSUT LEADERSHIP, as well as their lack of knowledge and understanding about some of the most basic and essential history and thinking regarding union organizing and action.

      We are, in fact, already losing. That is correct. However, at this point, we must not fully lose our ability to think clearly. If we do lose the case, and it seems fairly clear that its stacked in favor of that, we will not only have lost in Buffalo, but the entire process of placing schools in receivership and tossing union contracts is then part of the jurisprudence of the State of New York, and therefore ESTABLISHED LAW. Thats not just losing....thats escalating, magnifying, and putting your loss on steroids. Thats how things happen that take generations to undo.

      This thinking that the courts are where we need to be are a particular symptom of a total lack of understanding of the labor movement and labor history. Unions, organizing, and labor action exist because of the ASSUMPTION that the courts can be and in fact ARE a reflection of the power structures they exist in and offer no "unbiased" look at such cases. Unions exist to organize and take action precisely to avoid courts for the most part....BECAUSE IT IS THERE, IN COURTROOMS, THAT AWFUL ANTI-WORKER POLICIES CAN BE EMBEDDED INTO LAW WITHOUT GOING THROUGH THE USUAL AND MORE PUBLIC PROCESS OF CREATING LAW IN LEGISLATURES!!

      Elia and Cuomo and all the reformers would love all this to go to the courts.....its their home territory. They can get law written without all the fuss! Why do you think basically all the reformers love taking things to the courts??

  4. I have to agree with 9:04. It's a no win in court and especially unwinnable with an arbitrator. Lowell, Massachusetts- Randi's farcical approach.


  6. Our "grievance" is, indeed, a political one.

    Whatever one thinks of Elia she is simply doing what the amendments to State Education Law in 2014 proposed by Andrew Cuomo require her to do when there is a conflict between the receiver and the union over CBAs for receivership schools.

    Because we live in a state with the Taylor Law, we cannot legally strike. Yes, of course, we can "strike" but at the cost of potentially ruinous financial penalties against NYSUT and "two days per strike day" charges against individual teachers. Yes, again, many of us might like to ruin NYSUT financially but it's hard for me to believe that NYSUT or the membership would authorize and support a strike over receivership schools--the days of "union solidarity forever" and "we shall not be moved" are long gone.

    The Transit Workers Union went on a ten day strike in December 2006 which had no, nada, zip public support and it collapsed with nothing to show for it except huge penalties against the Local, loss of dues check-off for two years and fines against members--most of those eventually reduced by the judge.

    Unless the "Heavy Hearters" really screwed up the drafting of the legislation for the receivership provisions it's hard to see how this case turns out well for us.

    Seems to me two choices:

    1. Work politically to get the legislation changed or to defeat in 2016 members of the legislature who voted for it.

    2. Take action--perhaps even non-violent direct action--to bring about a crisis in the local political structure sufficient to cause elected officials to change education policy.

    Either one of these approaches will have required our unions, specifically, and our members, more generally, to have done the hard, sloggy, unpleasant organizing work to mobilize the members and to educate parents and the general public about the issues involved.

    What do you think will happen? I used to believe that the political system could be changed or that direct-action, creatively done, could create the sort of "crisis" that leads to change. I no longer do and I especially no longer do if any of that involves NYSUT, the UFT or the membership-at-large.

  7. I fear any direct union action will have to be taken without the support or benediction of the double retirees of NYSUT's so called leadership. They don't want to jeopardize one drop of their own precious fat by involving themselves in anything that could be construed as a job action. As noted above the legal dodge they have made into an artform will satisfy whichever box they have to check off on their rubric that proves they demonstrated interest in the rank and file. I think maybe some more phone calls to the White House, another dozen Nae Nae videos and a strongly worded letter or two will be about the most NYSUT can be expected to contribute. This one is going to have to be rank and file driven.

  8. I believe in NYSUT's legal staff a hell of a lot more than I do in its political staff, including Andy Pallotta. How many tens of millions has NYSUT wasted on contributions to the creeps that voted against us last March 31? NYSUT political track record the past 20 years has to be one of the worst in the nation.

    1. WHAAAAAAT????????

      There is a reason anybody who knows tells you to NEVER use NYSUT legal if you get jammed up...always hire someone yourself. On the micro level of dealing with teacher legal issues, they are known to suck.

      On the macro level of shepherding a case of this magnitude through the courts successfully they have NO (zero, 0, none) track record of success.

      NYSUT legal is a huge part of our problem. Talk about cushy jobs....NYSUT legal is made up of elite educated lawyers pretending at having a hardcore lefty union gig. They have offered no help, advice, or anything to our cause.

      NYSUT legal is beyond a joke and deeply part of the problem

    2. Wow did you say elite educated lawyers pretending to have a lefty union gig? I think I've figured out Weingarten's next career move after she gets excommunicated from AFT...

    3. Her resume would enable it for sure.

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