What does the data on ‘letter in the file’ grievances tell us about the current debate over whether or not they are an effective means of defending members against supervisory abuse?

In response to an inquiry from Ms. Frizzle, I looked into the record for ‘letter in the file’ cases taken to arbitration in the last school year, 2004-05. Remember that, in general, the union will only take its strongest cases to arbitration, as there is a limit on the number which can be scheduled. Two hundred ‘letter in the file’ cases were scheduled for arbitration last year, but many were postponed [30 on request of the DOE; 10 on the request of the grievant], so the same case was scheduled twice. As is generally the case from year to year, 15 postponements were held over to the next year. That means that 145 cases had some sort of final disposition.

In 22 cases, the grievant withdrew their grievance, with the most common reason being a retirement or a resignation which made the issue moot. Of the remaining 123 cases, there were 14 wins for the union resulting in the withdrawal of the letter. In the last 109 cases, the letter remained in the file, either sustained in whole or with minor changes in wording.

That is a success rate of slightly less than 10% on ‘letter in the file’ arbitrations. As a general rule, the UFT has a very strong win rate at arbitration, with victories in well over half of the cases we take. This is considered a very high union success rate within the industrial relations field. Most of the credit for that rate belongs to our UFT grievance department, but it also indicates that the DOE is pursuing cases which should have been settled without arbitration, because the position on their side simply lacked merit.

So why the low rate of success in having letters removed from the file? The answer is that the grounds on which a letter can be successfully grieved are quite narrow – only errors of fact or unfair conclusions can be grieved. “Supervisory judgment,” such as whether a lesson is “teacher dominated” or whether students are “actively engaged” in learning, can not be grieved. As a practical matter, therefore, it is extraordinarily difficult to have a letter removed from a file if the supervisor who wrote it knew what he was doing. Even when a supervisor makes a grievable mistake in a particular section of the letter, the remedy is most often to rewrite the letter, with that discrete error removed.

The most important point to grasp here is that even in the cases which ended in successful arbitrations, there was nothing to prevent the DOE from raising the matters described in the removed letter in a 3020a dismissal hearing. So even our 14 wins are not final wins. Similarly, there is nothing to prevent the UFT from challenging the matters discussed in the letter in the file at a 3020a dismissal hearing, even if we did not prevail at the ‘letter in the file’ arbitration.

If you read the fact finders report, their recommendation for eliminating the right to grieve ‘letters in the file’ was based on their judgment that it was redundant, and thus a waste of time and resources. They saw that when ‘letters in the file’ could have a harmful effect on a teacher, as supporting evidence in a disciplinary procedure, the same matter was adjudicated twice, first as a ‘letter in the file’ grievance and then at the disciplinary hearing. In their view, it made more sense to simply address the issue once and for all, at the disciplinary hearing. For the great majority of individuals who receive an occasional negative ‘letter in the file’ but are never brought up on disciplinary charges, the fact finders proposed that the negative letters be automatically removed from the file after three years. For most teachers, therefore, the practical impact of this contract proposal would be the removal of isolated negative ‘letters in the file’ that have lingered there for years and even decades.

From the point of view of the UFT, this contract proposal leaves intact what is absolutely essential – the ability of the grievant and her union advocate to challenge any negative material from a ‘letter in a file’ at a disciplinary hearing. It also leaves intact the right to write a response to a ‘letter in the file,’ which was often the best option for a member under the current contract. Since the supervisor is prohibited from responding in turn to the member’s response, the member has the last word with a written response.

While there has been some concern expressed that the contract proposal would result in an explosion of ‘letters in the file’ by abusive supervisors, Commissioner James Hanley, head of the NYC Office of Labor Relations, has pledged in writing to Randi Weingarten “that if there is a disproportionate increase in the number of letters in the file, the parties will sit down and negotiate the impact of that issue.”

For its own part, the UFT will also be ratcheting up its use of other sections of the contract, such as the Article 23 procedure for special complaints against supervisory harassment, where there is a pattern of ‘letters in the file’ designed to harass members.

But the bottom line here is the end to grievances over ‘letters in the file’ does not damage the fundamental rights of members, or hinder the union’s ability to defend them against supervisory misconduct.