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Officials from the Berkeley Federation of Teachers and the Berkeley Unified School District say they hope to settle union claims of improper layoffs out of court, but a disagreement over seven “probationary status” teachers may get in the way. 

In related news the district, which suggested in April that it might offer teachers retirement incentives, has decided against the move. The incentives, union officials have argued, would “induce” older instructors to leave the system early – reducing the number of layoffs necessary. 

“We did an analysis and we found that, at this time, it doesn’t help the district to offer retirement incentives,” said Associate Superintendent for Administrative Services David Gomez. “We just didn’t see the cost benefits.” 

Layoff notices, issued in March, would be effective at the end of the school year. According to district figures, Berkeley Unified issued pink slips to 82 probationary teachers and 91 temporary teachers. The district has withdrawn most of the probationary notices at this point. 

BFT is currently challenging 45 layoffs, involving 38 temporary teachers and the seven probationary instructors in dispute. 

The seven instructors are among more than 30 probationary teachers who participated in layoff hearings in April, challenging district pink slips. Administrative law judge Jonathan Lew, who presided over the hearings, ruled May 7 that the district made errors determining teacher seniority in many cases. 

The district has now rescinded all but 14 of the layoff notices. The union claims that Berkeley Unified should rescind an additional seven. 

BFT President Barry Fike said the seven teachers in question have greater seniority than teachers who never received layoff notices or had their notices rescinded. In order to ensure the seniority rights of the seven teachers, he said, the district should withdraw their layoffs as well.  

But David Gomez, associate superintendent for administrative services, points to the Lew ruling and existing case law which dictate that a failure to properly handle a teacher with lesser seniority should not lead to a “domino effect.” 

For every teacher with lesser seniority who improperly retains a job, the case law suggests, a district only needs to rescind one notice for a teacher with greater seniority, not all pink slips for teachers with more service time.  

Because the district has already rescinded an adequate number of notices to correspond with its errors, the reasoning goes, it need not withdraw the seven pink slips in dispute. 

Gomez said the district is fairly confident of its legal standing on the matter, but will review the union’s concerns carefully. 

“We want to be fair to our employees,” he said. 

Fike said the union will wait and see to determine whether it will take the district to court over the seven probationary teachers. But if BFT does go to trial, he said, the union will challenge the “domino effect” rationale. 

The union is also arguing that 38 teachers deemed temporary by the district are actually probationary, throwing their layoffs into doubt. Gomez said he is in the process of reviewing the records of those teachers. 

Gomez added that, as the district’s budget picture clears up, there is a “very good possibility” that economic realities will allow the district to rescind more layoff notices in the near future, rendering moot some of the legal wrangling.