ESTA UPDATE
East Side Teachers Association/CTA/NEA 888 So. Capitol Ave San Jose, Ca 95127 November 15, 2002
Don McKell, President Julie Pratico, Vice Pres Carla Holtzclaw, Secretary Ralph Giannini, Treasurer
mckelld@esuhsd.org fax: (408) 272-7569 voice: (408) 272-0601 website: www.EastSideTA.org
CATASTROPHIC SICK LEAVE BANK
ESTA and the District have reached agreement on the creation of a Sick Leave Bank. Once the SLB is up and running, members of our bargaining unit who have exhausted all of their own sick leave will be able, under certain circumstances, to draw additional sick leave days from the bank and still receive full pay.
Background: At present, members are advanced ten sick leave days at the beginning of each school year. Unused days accrue over the course of a career, are transferable to other school districts within the state, and have value upon retirement. As long as an individual has unused sick leave days, paychecks are unaffected by absences caused by illness and other reasons as specified in Article 6 of our contract. However, in serious cases it is possible to deplete ones sick leave account to zero and still not be well enough to return to work. Under state law, a teacher can continue to draw salary in such instances minus the cost of a substitute for a period of five months (100 days). This is often referred to as "differential leave". After 100 days, the law allows the district to terminate the employee, but gives specific rehire rights if the individuals health improves sufficiently to resume work within 39 months.
Our new Sick Leave Bank will be able to mitigate the impact of extended absences for some members by delaying the onset of differential leave. Briefly, heres how it will work: participation is voluntary, participants will donate one sick day each year to the bank for at least two years, contributions beyond two sick days are deferred if the bank balance rises above a certain threshold, only participants are eligible to receive sick leave days from the bank, a bank balance of at least 100 days must be accumulated before operations can begin, a five member ESTA Committee will be responsible for establishing the procedures for individual application, the Committees decisions will be final and binding and not subject to grievance procedures.
Weve all heard the fable about the grasshopper and the ant, in which the grasshopper frivolously frittered away his summer days saving nothing for the winter. To guard against abuse by the occasional grasshopper, it will be the duty of the ESTA SLB Committee to determine eligibility for assistance. That will be a big responsibility. Get in touch with me if you are interested in being on that Committee.
Expect to see a more complete description of this new concept in your mailboxes soon. Once you understand what is being offered, you will have an opportunity to choose whether or not you want to participate.
WRITING SAMPLE
Just about every school in the district has recently administered a writing sample "test" to the bulk of its 9th and 10th graders. At least one site expanded this district directive on its own to juniors and seniors, too. This most recent assessment is not state-mandated, nor is it even a part of the NWEA series. So whats it all about?
According to Asst Sup. Dan Ordaz, two things. First, it is intended to provide much-needed practice for the writing portion of the serious-as-a-heart-attack California High School Exit Exam. Second, it is a part of a district data-gathering plan to provide a means for schools to measure growth and effectiveness of their writing programs.
Ordaz states that the district plan is to administer the test to all 9th and 10th graders, and then bring random samples (about 20%) to the district for consistent scoring using the same rubric employed in scoring the HSEE. Any other use or scoring of the writing samples, he asserts, would be a site initiative.
Which brings me to why I was having the conversation with him in the first place. I have reports of wide differences in these site initiatives, with varied encroachments on teachers time. Lets say it takes ten minutes to assess each student sample. If Im a teacher with 150 freshmen and sophomores, and I am directed to administer this exam and then score each of my students samples, Ive just been given 25 hours of extra duty. When do I do that? Every prep period for over a month? After school, on my own time? It is reported to me that those are exactly the choices open to teachers at some sites. Thats not OK.
The veteran teacher knows s/he can ignore pressure to spend private time on this kind of school business, even if offered overtime or other compensation. The real victims of this type of institutionalized bullying will be the non-permanent teachers who fear retaliation for making waves, and so who accede to the pressure put on them and grudgingly spend the extra time.
Each of us long and short timers alike have an inarguable obligation to carry out lawful directives of our principals to perform work for which we are credentialed and qualified during the work day. To fail to do so invites charges of insubordination and opens the door to progressive discipline. So if your school provides time during the work day for the purpose of scoring writing samples after proper training, do whats asked of you. But unless time is created for you to do the work, you should know that you are under no obligation to do this or any other work on your own time (even if overtime pay is offered). One possible exception to this could be when an after-school meeting is called and the expectation for attendance and participation are the same for every member of the faculty.
Teaching may be the only occupation in which employees are asked to perform overtime work at a pay rate which is less than their normal wage. So make sure that when you do it, it is truly your choice to do so.
TRANSFER CREDIT
At the present time, our contract allows an individual to receive up to eight years credit for outside contractual service when becoming an employee of this district. This means that if you have, say, ten years teaching experience in some other school district, you could be placed on step 9 of our salary schedule when East Side hires you (the same as if you had spent eight of those years working in East Side). In rare instances, the "outside contractual service" could be in-kind service, such as having been a trainer in corporate America or certain previous military duty. Such cases are handled one at a time by Personnel. Different districts have different "caps" on the amount of outside service that theyll accept from transferees. That figure is a function of the contract in each district. In East Side, it hasnt always been eight. In the very old days, a transfer teacher might have been offered a one-time cash "bonus" for coming to East Side. (Or not, depending largely on whether Lou Rose liked you or if you were being recruited as an athletic coach.) That silliness changed with the advent of Collective Bargaining in the mid 1970s. Our first contracts allowed for one year of outside credit. Successive agreements slowly raised the number to three, then five, then six, seven, and now eight years. As those numbers have increased, newcomers have benefited, but none of the changes has ever been retroactive. For example: if Betty had twelve years service in another district and came to this district at a time when the "cap" was five years, she would have "given up" seven years on the salary schedule. Since then, future transferees might have gotten eight years credit, but Betty hasnt been given any further salary schedule gains other than those shes earned by virtue of working in this district. ESTA has tried on several occasions to bargain "make whole" language, without success.
As recently as two years ago, other districts in this Valley had more generous transfer credit policies. On the west side, for example, Los Gatos/Saratoga UHSD used to have no cap at all: come to them and get hired with 30 years service in another district and theyd put you on year 30 of their salary schedule. Really. In their most recent contract, however, theyve now agreed to a cap of eight years. Maybe thats because they often have ten or more applicants for every job opening, or maybe its because the existing teachers in that district felt that loyalty to one district ought to be worth something. Who knows?
So, a few years ago when our district approached us to see we would bargain a raising of our eight year cap, we said we were interested. But we wanted to know whether there wasnt a way of "making whole" the hundred or so current ESTA members who had given up some years when transferring to East Side. Those talks never got anywhere, and neither side raised the issue in our most recent round of bargaining.
Meanwhile, different districts around the state provide for differing amounts of outside credit. If youre thinking of jumping out of East Side into one of those places, be sure you consider all of the ramifications. To be sure, your unused sick leave will transfer with you, as will your STRS service credit, as long as the new district is in California. But if youre a permanent teacher in this district, your permanent status wont transfer with you. Also, East Side is not in the habit of granting Leaves of Absence to teachers who wish to try out other jobs, so youll have to resign. If you resign from East Side, better do it between the end of school and the end of June, and dont assume that you are guaranteed to be rehired here if your other job doesnt work out. You might also want to look very carefully at that other districts current benefits package and its contractual provisions concerning medical coverage for retirees. But if you have eight years or less of teaching experience, and can find a fit with some other district whose homes are less expensive and whose leadership and voters are more supportive of employees, who could blame you for looking?
ESTA FILES CHARGE OF
UNFAIR LABOR PRACTICE
After consultation with a CTA Staff Attorney, ESTA has filed a charge with the Public Employee Relations Board (PERB), alleging that the district has engaged in an Unfair Labor Practice. The charges arose from district behavior late last school year in two separate cases in which our members were disciplined following the issuances of Public Complaints. Article 28 of our contract both defines and describes the process for investigating public complaints. Article 27 sets forth due process rights in disciplinary matters. In the case brought to PERB, we allege that the district ignored contract our language and proceeded to deal with the complaints using a form and a format which constitute a unilateral change in working conditions. Under the landmark Educational Employment Relations Act, all of our working conditions are subject to collective bargaining, and school districts are prohibited from instituting changes that have not been bargained. We are seeking a ruling from PERB which invalidates the basis upon which the district took its action and also which sets aside the punishments meted out.
ESTA has filed grievances on the same issues and the matters will therefore also be submitted to binding arbitration in the near future. In one particularly egregious case, a district official told our member that he must accept a nine-day suspension without pay as a punishment for his alleged misbehavior, and that if our member sought the protection of the Association the district would begin dismissal proceedings. Thus intimidated, our member did the smart thing and took the nine days. Due to the districts choice of handling the matter as a Federal Title IX case rather than a Public Complaint we are denied the ability to inspect the written allegation, nor question the complainant, nor examine the method used by the district in investigating the specifics of the complaint for bias or completeness. In the arbitration hearing, we will seek a ruling which denies the district the ability to ignore contract language when it suits the districts needs, as well as a rescinding of the punishments.
CALENDAR SURVEYS
I am amazed at the seeming lack of response from ESTA members on the early-start work year calendar surveys distributed at the beginning of this month. Please complete yours soon, and get it turned in.