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City: Turnaround staffing complaints weren't arbitrable after all

The city’s case for reinstating thousands of hiring decisions at 24 struggling schools relies on the argument that an arbitrator should never have considered reversing them in the first place.

Since January, the city has been trying to carry out a controversial overhaul process known as “turnaround” at the schools. To follow state and federal rules about staffing in turnaround schools, the city had to engineer what amounted to overnight school closures. But the UFT and the Council of School Supervisors and Administrators argued that the changes were “sham closures” designed for political ends and so did not qualify the city to use the staffing rules it had invoked. On Friday, an arbitrator, Scott Buchheit, agreed with the unions.

The city voluntarily entered into the arbitration process in May at a State Supreme Court judge’s urging in order to speed the resolution of the unions’ complaint. Buchheit is one of several arbitrators that the city and teachers union have jointly agreed should hear contractual disputes.

But in a suite of legal papers filed late Monday, the city suggests that the Buchheit should have declined to consider the unions’ complaints. The main petition says that city lawyers argued to Buchheit that he should toss out the grievances before him because the union contracts did not define closure; arbitrators are barred from superseding state laws; and the Department of Education cannot bargain away power over classroom standards.

But Buchheit didn’t listen, so his ruling should be overturned, the petition says.

In a supporting affidavit, Marc Sternberg, the Department of Education official in charge of the turnaround process, argues that letting the arbitrator’s decision stand, even temporarily, would cause “irreparable harm” to the department’s effort to improve the schools by September.

The argument goes beyond what Bloomberg indicated on Monday. Bloomberg suggested that the city would seek to have the arbitrator’s ruling put on hold until his full rationale was made public, which might not happen until the end of the month.

It is also seen as unlikely to gain traction when Judge Joan Lobis considers the city’s petition next week, after she returns from vacation. Lobis is the judge who urged the city and unions into the binding arbitration process in the first place. She is also the judge who overturned the city’s plans to close 19 schools in 2010, voiding a Panel for Educational Policy vote in the process.

The city’s petition to the court is below. Its supporting documents, including Sternberg’s affidavit, can be found here.

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