AMERICAN ARBITRATION ASSOCIATION Voluntary Labor Arbitration Tribunal ----------------------------------------X In the Matter of the Arbitration

- between-

UNITED FEDERATION OF TEAC HERS

-and-

DEPARTMENT OF EDUCATION/CITY OF NEW YORK ------ -------- ~------ ------~~- ----------X Before : Carol Wittenberg, Arbitrator

OPINION

01-1 4- 0000-5130

(CR-175)

The undersigned, having been designated by the

parties , pursLlant to the collective bargaining agreement ,

was selected to serve as Arbitrator of the dispute

described below. Hearings were held on May 30 , 20 14 and

february 5, March 30 and April 27, 20 15 at the offices of

the Ame~ican Arbitration Association . The Union was

represented by Ellen Gallin-Procida , Director of the

Grievance Department . The Department was represented by

James Gounelas, Esquire.

The parties had a full and fair opportunity to present

evi dence and oral argument and to examine and cross-examine

witnesses. The hearing was declared closed on April 27,

2015 .

The parties were unable to agree on a stipulated

jssue. The Union proposed the following issue:

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Did the Department violate Article 20 of the collectible bargaining agreement , specifically Chancellor's Regulation C-175 , when it paid per session to teachers for teaching credit bearing courses during the school year? If so , what shall the remedy be?

The Department proposed the following issues:

Whether the grievance is arbitrable or was t i mely filed?

If so , did the Department of Education violate Article 7M , 15 and 20 of the col l ective bargaining agreement covering teachers when it conducted per session classes before and after the regu lar school day? I f so , what is the appropriate remedy consistent with the terms and condtions of the Agreement?

The Arbitrator finds the issue b e fore her to be ;

Whether whether Agreement schedu l ed fol l owing classes?

the grievance is arbitrable and , the Department violated Article 20

and Chancellor's Regulation CR-17 5 academic credit classes prior the regular school day as per

I f so , what shall the remedy be?

RELEVANT CONTRACT LANGUAGE

ARTICLE TW ENTY - MATTERS NOT COVERED

if so , o f the

when it to and s ession

Wit h regard to matters not covered by th i s Agreement , which are proper subjects for collective bargaining , the Board agrees that it will ma ke no changes wi thout appropr iate prior consultation and negotiation with the Union .

The Board will continue its present policy with r espect to sick lea ve , sabbatical leave , vacations and holidays except insofar as change is commanded by law .

Al l existing determinations , authorizations , by- l aws , ruli ngs , reso l ution s , regulations , rules ,

certifications , orders , directives, and o the r actions

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made, issued or entered into by the Board of Education governing or affecting salary and working conditions of the employees in the bargaining unit shall continue in force during the term of this Agreement , ex dept insofar as change is commanded by law.

REGULAT I ON OF THE CHANCELLOR CR- 175

I. POL I CY

BACKGROUND

Per session work must not interfere with or be an extension of the employee ' s primary job respons i bilities , or be used as a means of providing additional compensation for work in an i ndividua l s' primary assignmen t .

The relevant facts in this case are not in dispute.

The Department has been scheduling credit recovery, credit

accumulation and supplemental credit courses prior to and

following the school day at certain high schools throughout

New York City and offering these courses as per session

classes . These courses generally are offered both to

accommodate students who have fallen behind as well as

students who have failed a course und need the credit in

order to graduate . In some cases, classes are scheduled

before or after the school day because the school cannot

accommodate them into the regular school day. Per session

classes are posted and teachers voluntarily apply to teach

them at a per session rate .

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The Union filed its grievance on November 8, 2013.

The g r ievance refers solely to credit bearjng c ourses

offered before and after the school day , buL not to

extended day classes or to weekend or summer school classes

that the Union agrees are and can be offered on a . per

session basis.

The .i,ssue of how the g:t:ieved per session classes are

treated under the Agreement has been raised previously in

class-size arbitrations . Arbitrators have ruled

differently wi th regard to whether or not am/prn per session

classes are subject to class size limitations .

decis i ons are non-precedent i al.

Class size

Classes the Union cited in its grievance inc l ude both

basic academic classes as wel l as specialized classes such

as gym. The number of students assigned to these classes

can vary greatly. However , there can be as many as 60 or

70 students j n academic classes and more than 100 in gym

classes. Teachers who teach per session classes are

responsible for taking attendance, teaching a curriculum,

grading and testing , including conducting Regents exams

where required .

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POSIT ION OF THE UNION

The Union asserts, at the outset , that the grievance

is arbitrable because it constitutes a continuing violation

of the Agreement. With regard to the merits, the Union

contends that offering am/pm academi c courses as per

session classes in high schools violates Chancellor's

Regulation CR- 175 and, therefore , l\rticle 20 , Matters Not

Covered. The Union contends that CR-175 specifically

states that per session classes cannot be "an extension of

the employee ' s primary job responsibili ties, or be used as

a means of providing additio nal compensation for work in a n

i ndividual ' s primary assignment .n The tJn ion argues,

therefore, that the payment of per session rates cannot be

a means for paying teachers fo r work simjlar to work

performed during the regular school day .

With regard to summer and weekend classes, the Union

acknowledges that these classes have always been offered on

a per session basis, pre- dating the collective bargaining

agreement. The Union also acknowledges that extra

curricular classes may be compensated on a per session

basis, distingu i shing betwee n summer school and am/pm

classes offered during the regular school year .

The Union contends that the Department is using these

per session classes lo circumvent class size and staffing

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requirements. Certain high schools are extending the

school day by offering regular courses on a per session

basis. The Union cites t he example of credit recovery

courses, provided to students who failed a course that is

needed for graduation . The Department is offering

equivalent intensive instruction that mirrors the original

failed course. The Union claims that the curriculum is the

same and that the teacher must assign grades and administer

Regents exams where required. The Union argues that the

only difference between these am/pm academic courses and

courses offered during the regular school day is the time

they are offered and the pay received by teachers.

The Union asks the Arbitrator to order the Department

to cease and desist from offering these courses as per

session classes effective the 2015 - 2016 school year and to

award teachers a shortage rate of pay from the date the

Union filed its grievance, the date of the Step 2 hearing

or, at the latest, the first day of the arbitration

hearing.

POSITION OF THE DEPARTMENT

At the outset, the Department contends that the

Union ' s grievance was untimely filed because the Depa rtment

has offered per session classes for more than 10 years

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without objection . The Department cla ims that the Union

has acquiesced in allowing the Department to offer am/pro

credit courses on a per session basis similar to its

offering of equivalent classes on weekends and during the

summer months.

With regard to the merits , the Department contends

that per session classes provide students an opportunity to

graduate on time. Further, the Department points out that

am/pm classes are gene r ally offered to students who failed

a class or fell behind i n a c ertain subject. The

Department points out that unlike c l asses offered during

the regu lar school day , these classes are offered on a two ­

hour per day two day per week basis as opposed to being

offered for 45 minutes five days per week .

The Department also argues that it is not feasible to

offer these courses during the regular school day because

there isn't sufficient Lime in students' schedules to

accommodate these classes. The Department also claims that

staggering school schedules i s not feasible and is

extraordinarily expensive .

The Department asserts that the original purpose of

CR-1 7 5 was to prevent fra ud. Additionally , the Department

points out that teachers voluntari l y apply for per sess i on

classes with knowledge that they are conducted after the

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regular school day and paid at a per session rate. The

Department argues tha t use of one ' s pedagogical skills does

not make these classes violative of CR-1 75.

The Department contends that most arbitrators have

found that c l ass-size limits do not apply to per session

classes , supporting its position that they do not

constitule a contract violation . The Department claims

that a finding in the Union' s favor would have a chilling

effect citywide and affect student ' s ability to graduate on

time. The Deparlment requests that , if the Arbitrator

rules in the On ion's favor, that she do so prospectively.

OPINION

At the outset , the Department argues that the

grievance is not arbitrable beca use it was not timely

filed , claiming that the Department has offered am and pm

per session academic credit courses for more than 10 years

without Union ob j ect i o n. The Department claims , therefore ,

that the Union has acquiesced in its accepta nce of these

c l asses being offered on a per session basis , noting that

the courses are posted , t hat teachers voluntarily apply to

teach them on a per session basis and that Chapter Leaders

in high schools are well aware of these courses baing

of f ered before and after the regul ar school day .

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First , the evidence establishes that although some

high schools have offered am and pm courses for some period

of time, the number of such classes increased significantly

before the Un ion filed its grievance in November 2013.

Moreover , in some cases , high schools

regular academic courses after school, not

recovery and credit accumulation courses.

began offering

simply credit

Second , the

i ssue of offering am/pm academic classes on a per session

basis constitutes a continuing vio l ation of the Agreement.

Therefore , each time these courses are offered on a per

session basis , the Union has an opportunity to grieve .

Having found th is grievance to be arbitrable , the

Arbitrator turns to the merits. Article Twenty provides

that for matters not specifically covered under the

Agreement , the Department will be bound by "all existing

determinat i ons , authorizations , by-laws, regulations,

rules , rulings, resolutions , certificates, orders,

directives and other actions made , issued or entered into

by the Board of Education governing or affecting salary and

hourly conditions ... " of teachers.

Therefore, pursuant to Article Twenty , t he Department

is contractually bound by CR- 175. Under Section I of CR-

175 the Departme nt i s not permitted to offer per session

c l asses as "an extension of the employee's primary job

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responsibilities ... " The crux of the issue before the

Arbitrator, therefore, is whether teachers teaching regular

academic classes, course recovery and course accumulation

classes are performing work that is "an extension" of their

primary job responsibilities. The Arbitrator finds that

Lhese specific per session classes violate CR-1 7 5 for the

following reasons .

The Arbitrator turns first to the r egular academic

classes certain high schools offered after the regular

school day. 'These courses are identical to those taugh t

during the regular school day except that they usually have

more than 34 students enrolled. The teacher takes

attendance, covers the same curriculum as regular classes,

reviews homework assignments , marks tests and administers

Regents exams where required. These classes are identical

to those offered during the regula r school day and , thus ,

v iolate CR-175 . They constitute an exlension of a

teacher's pr imary job responsibil i ties.

The Arbitrator turns next to the credit recovery and

credit accumulation classes . The Arbitrator accepts the

Department's argument that these classes provide students

with an opportunity to graduate on time. The Arbitrator

also accept s the Department ' s argument that it may not be

feasible or affordable to stagger the school day to

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accommodate these classes. This reasoning does nol,

however, permit the Department to violate the Agreement in

order to offer students these opportunities.

The Arbitrator is unpersuaded that the reluctance of

some arbitrators to apply class size l imit s to academic per

session classes answers the question of whether the c l asses

violate CR-175. Class size determinations are made

pursuant to a different article of the Agreement and class

size decisions are not precedential.

The Arbitrator is also unpersuaded by the Department's

argument that Lhese classes are offered four days per week

in two-hour modules rather than on a 4 5- minute basis five

days per week. In fact , the number of hours offered in

these credit recovery and credit accumulation classes

exceed those offered during the regular school day.

The Department contends that the use of pedagogical

skills does not make the courses a violation of CR-175.

While this factor alone may not be determinative , the use

of one ' s pedagogical skills is one faclor ~n evaluating

whether these per session classes violate CR- 175. The

other factors incJude the curriculum and other requirements

similar to if not identical with the requirements teachers

have with academic courses offered during the regul ar

school day. Credit recovery and credit accumulation

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courses are mirror courses of the originill ones taken by

students during the regular school day. They offer the

same curriculum , the same grading requirements, including

the administration of Regents exams .

In essence, the Department is using these per session

academic classes to offer courses before or after the

school day that are either similar to or identica l to those

offered during the regular school day . The difference is

that the Department has not, in many cases , complied with

class size limitations and does not pay teachers their

regular pay rate to teach these courses . This is a direct

violation of CR-175 by being "an extension of the

employee ' s primary job responsibilities." These per

session courses may also serve as a means of providing

"additional compensation

primary assignment."

for work in an individua l ' s

The Department urges the Arbitrator to look to the

intent of CR-1 7 5, which it asserts was to avoid fraud , in

determining whether t here is a violation. However, the

relevant l anguage in CR- 175 is clear and unambiguous.

Under these circumstances, the Arbitrator need not attempt

to glean the intent of such plain language.

The Union seeks a cease and desist order , but not

until the end of this school year as well as shortage pay

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for teachers. The Department asks that any remedy be

prospective. The Arbitrator has weighed the arguments from

both sides and finds that teachers who taught academic per

session courses during the 2014-2015 school year shall be

paid on a p ro- rata basis for the courses taught . The

Arbitrator a l so issues a cease and desist order from

violating CR- 175 and retains jurisdiction of the remedy.

AWARD

The grievance is arbi trable and the grievance is sustained. The Department violated CR- 175 by offering certain academic courses before and after the regular schoo l day . The Department s ha ll cease and desist from vio l ating CR- 175 and teachers who taught these courses during the 2014 - 2015 school year shall be paid on a pro­rata basis less any per session pay received. The Arbitrator maintains jurisdiction over the remedy portion of this Award .

Dated: May 20 , 20 15

STATE OF NEW YORK ss :

COUNTY OF N8W YORK

I, CAROL WTTT8NB8RG, do hereby affirm upon my oath as Arbitrator that I am the ind i vidual described in and who executed this i nstrument ,

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