ESTA UPDATE

CLASS SIZE GRIEVANCE SETTLEMENT

On September 17, ESTA filed a grievance with the district alleging a series of violations of Article 15 of the Collective Bargaining Agreement. Article 15 is that portion of our contract that specifies many of the terms and conditions relating to Class Size. Section 15.1 leads off by specifying what the departmental class size maximums are. Section 15.2 states “every effort should be made at and between schools to bring all individual class enrollments as close as possible” to the specified departmental maximums.

In our grievance, we alleged among other things that the District had not made “every effort” this fall to bring class sizes within contract limits in a reasonable time.

We’ve been down this road before. This grievance marks the fifth occasion that ESTA has pursued binding arbitration to settle a dispute over allegations of the District’s failure to follow the contract in matters of Article 15 class size. We have won in each instance.

Normally, bringing in a neutral arbitrator for Level 3 of our grievance process takes a considerable amount of time. In all other Articles of the contract, the grievance process involves attempts to settle at the site (Level 1), and then an attempt to settle at the DO (Level 2) before a matter can be moved to Binding Arbitration (Level 3). But waiting three months or more to bring a class size issue to an arbitrated settlement would often mean that we’d be in the middle of second semester before a first semester class size dispute could be resolved.

Thus, our contract provides for entering into “expedited arbitration”, but only for class size issues. Experience and a lot of work have demonstrated in the past that when everybody involved “makes every effort”, it should take no more than seventeen workdays to reach satisfactory closure on the issues of class size and master schedule balancing at the start of a semester. This number is so reliable that it is included in Article 15 of the contract.

As a brief aside, I should point out that even though I often refer to the Collective Bargaining Agreement as “our” contract, not one word appears in the document because only ESTA wanted it there. The contract is a legal document in which every word has been bargained, accepted, and ratified by both parties.

As a result of our September 17 grievance, ESTA and the District were launched on a course that would end only after a neutral Administrative Law Judge rendered an Arbitrator’s Award that would be binding on both parties. October 8 was the first date that the agreed-upon arbitrator was available.

Arbitrator’s Awards come in two “flavors”. The first is a Directed Award; the second is a Stipulated Award. Directed Awards are obtained after both parties put on their respective cases, calling witnesses and eliciting exacting testimony – often over a period of several days – after which the Arbitrator may take 30 to 60 days to render an award. Stipulated Awards are obtained when both parties have reached agreement on the facts and outcome of the case prior to the arrival of the Arbitrator, and allow for a much speedier resolution.

Shortly after learning the date of the Arbitration, ESTA approached Chief Human Resources Officer Bob Nunez to see if the District would consider trying to reach agreement on the class size issues prior to the arrival of Arbitrator Barbara Bridgewater, thus allowing the parties to seek a Stipulated Arbitrator’s Award. Nunez agreed, which set into motion a hectic series of draft documents, meetings, and emails.

A couple of days before the Arbitration was to have begun, it became clear that both parties were getting very close to agreement. This situation came about after the better part of a hundred hours of meetings, draft proposals, and written communications. Finally, within minutes of the scheduled beginning of the Arbitration, we reached closure. Thus, in mid-morning on Friday, October 8, we received a Stipulated Arbitrator’s Award, signed off by the Arbitrator Barbara Bridgewater, Chief Human Resources Officer Bob Nunez, and ESTA President Don McKell. See over for an abbreviated summary of the highlights of the Award.

HIGHLIGHTS OF THE

STIPULATED ARBITRATOR’S AWARD

· The Arbitrator retains jurisdiction in class size disputes through February of 2006.

· The District reaffirms that the contract is language that has been mutually agreed to, and that by failing to make every effort to balance class sizes by the 17^th workday, it caused unnecessary disruptions in the educational process and an increased workload for employees.

· Beginning next semester, the District has agreed to create a new course section of any course in each case in which the total number of students enrolled in that course at any site exceeds one half of the departmental maximums in the contract. (This will be referred to below as the “over 50% rule”.)

Example: Suppose that at one high school, there are ten regular (non-sheltered) Geometry classes, with a total enrollment of 340 students. It does not matter that these ten Geometry classes are divided up at the site into five Small Learning Communities. The contract maximum for ten such mathematics classes is 10 x 32 = 320 students. The 340 actual enrolled students exceeds the contract maximum 320 students by 20 students. Since these 20 students exceed 50% of the contract maximum in mathematics of 32 students (20 exceeds 50% of 32), the District is obligated to open a new section of Geometry at that site, and then to make every effort to balance students in all 11 Geometry classes to no more than 32 students in any one class.

· For the duration of the current semester, the District agrees to open new class sections – under the “over 50% rule” as cited above – unless acceptable rationale for not doing so can be provided to the ESTA President.

· When teachers sign class size waivers, and the waivers are then co-signed by the ESTA President, the excess students in those sections cease to count towards exceeding the “over 50% rule”.

Example: Suppose one or more of the Geometry teachers in the illustration above sign class size waivers for their Geometry classes, and that the ESTA President co-signs those waivers. Suppose further that the Geometry classes for which the valid waivers are signed have a total of nine students over the 32-student limit. Because of the waivers, these nine students now do not count towards the total of excess students, and so instead of 20 students over the limit, there would now be only 11 students over the limit. Since 11 does not exceed 50% of 32, no new class section must be created.

· Only class size waivers executed and recorded by the 17^th workday of a semester count towards eliminating the need to make class size overage payments or creating new sections under the “over 50% rule”.

· Classes for which waivers have not been signed but which have excess students must continue to undergo “every effort” in class size balancing. If “every effort” is made and the class continues to remain unbalanced, the rationale for leaving it unbalanced must be provided in writing.

· The District will pay all costs relative to the enforcement of Article 15 through the end of the 05/06 school year, including the approximately $1,200 cost of this arbitration.

· In both semesters of the current year and next year, the District will pay the $1 per day class size overage payments to teachers for all “unwaived” classes that have excess students on or after the 15^th workday. In addition, these payments will be retroactive to the first day of the semester, and will cover all students over the maximum number.

Example: If a foreign language teacher (dept max: 29 students) had excess students from day 1 through day 14, but had balanced classes on day 15 and beyond, that teacher will not receive class size overage payments for that class. However, if that same teacher had five students over the contract limit of 29 beginning from day 1, and that excess continued beyond the 15^th day for the remainder of the (89 day) semester, that teacher will receive class size overage payments of 5 x $1 x 89 = $445 after the end of this semester for that one class.

· No later than November 30 of this year, the District will make available to all classroom teachers a one-time “Herrera money” appropriation of $50 to be used to offset the costs of instructional supplies.

· No later than November 1 of this year, the District will begin to collectively bargain in formal negotiations with ESTA a mutually agreeable definition of the phrase “exceptional circumstances” as referenced by section 15.4 of the contract.

· The District will continue to provide training relative to master schedule building and mainten-ance – including class size balancing – to all appropriate personnel.

· All of the agreements in this Stipulated Award remain in force until and unless mutual agreement is reached in collective bargaining to alter them.

ESTA members who wish to obtain a complete copy of the seven-page Stipulated Arbitrator’s Award should contact me or their Building President.