Will the failure of the UFT to provide contractual language prohibiting subcontracting doom a challenge to prohibit the denial of per session?

Yes. Community Based Organizations have been operating in most New York City public schools for many years. They have preformed functions that were previously preformed, exclusively, by UFT members.

Prior to the 2015-2016 school year, the BOE provided the after-school program at New York City Lab Middle School for Collaborative Studies (M312) (Lab Middle School). This program was staffed by UFT members on a “per session” basis. On June 12, 2015, the principal at Lab Middle School informed the staff that its after-school program would be subcontracted out to Manhattan Youth Recreation and Resources, Inc. (Manhattan Youth), for the following year. Manhattan Youth would now be the employer for all UFT members who provide services in the after-school program. Manhattan Youth is a CBO “that has provided after school programs — which have included sports, academic support, arts, literacy and other programs — for over a decade in many elementary and middle NYC schools.”

The UFT decided to file a grievance about the practice at the Lab Middle School and sought arbitration. The DOE commenced a proceeding to stop the arbitration proceeding and the Supreme Court, by Justice Carol Edmead agreed.

Justice Edmead noted that the collective bargaining agreement contained no provision about this subcontracting work and thus was not subject to the mandatory arbitration procedures of the collective bargaining agreement.

THE BOARD OF EDUCATION v. UNITED FEDERATION OF TEACHERS, 453214/2015.Supreme Court, New York County, Decided May 24, 2016.

2016 NY Slip Op 50806(U)

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