'...the educational program at Taylor... suffered as a result of the insufficiency of substitute teachers. The students are the ones who have been denied the full benefit of the education...' Chicago Teachers Union wins huge arbitration victory regarding CPS obligation to provide cadre subs
�I believe the Board has no incentive to correct the insufficiency of substitute teachers unless it is subject to a monetary award for breaching the CBA,� the arbitrator rules. �In addition, let there be no mistake about this crucial fact: the educational program at Taylor Elementary School suffered as a result of the insufficiency of substitute teachers. The students are the ones who have been denied the full benefit of the education to which they are entitled.�
On July 21, 2014, the Chicago Teachers Union received word that it had won a major grievance arbitration based on the refusal of the Board of Education to provide substitute teachers to elementary schools. The arbitration includes an award of monetary damages. The grievance, originally filed in 2012, demonstrated that the Board of Eduction had failed to provide substitute teachers for Taylor Elementary School. The result of the Board's failure was the regular disruption of the school's instructional programs: When the school didn't have substitutes, the administration's "solutions" included splitting students into other classrooms; utilizing teacher assistants/PSRPs for all-day sub coverage; utilizing special education teachers for sub coverage; utilizing preps/special teachers for sub coverage... and some other "solutions."
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The grievance on substitute coverage resulted in a victory for the union, despite the fact that some people denigrate the importance of using the union contract to enforce the rights of teachers, other staff, and -- students. Above, cover of the arbitration decision.N THE MATTER OF ARBITRATION BETWEEN CHICAGO TEACHERS UNION and BOARD OF EDUCATION OF THE CITY OF CHICAGO (Grievant: Susan Zupan, et.al.; Attorney Robert E. Bloch), on Monday, July 21, 2014, the final decision from Arbitrator Ann S. Kenis was handed down to the Board of Education (BOE) City of Chicago and the Chicago Teachers Union (CTU) on July 14, 2014. Despite stalling by the Board at every point, the grievance was a victory for the union and for all of the staff at Taylor Elementary School -- and for the students whose educations will no longer be disrupted by the Board's refusal to provide enough substitute teachers when classroom teachers are absent. [Full disclosure: This reporter is the CTU delegate of Douglas Taylor Elementary School in South Chicago.]
The grievance will also become the basis for more grievances, anticipated for the upcoming school year, unless the current Board of Education finally begins to provide all Chicago public schools with enough substitute teachers for all absent classroom teachers.
"CPS has ignored its commitment to hire a sufficient number of substitute teachers for too long, and the Taylor Elementary School teachers simply had enough and demanded action," Robert Bloch told Substance. "I applaud their initiative, and I am delighted that Arbitrator Kenis agreed with the Union and ordered that more Cadre substitutes be utilized at Taylor. More kudos to the Taylor Elementary teachers for requesting, and Arbitrator Kenis for ordering, that CPS put over $20,000 into a fund to be spent by the PPC to help alleviate the harmful impact on students who were denied needed teachers. We hope to use Arbitrator Kenis's award city-wide to correct this harmful condition."
The full text of the arbitrator�s decision is included in this report [see below, following this article]. Readers are strongly encouraged to read the entire 18-page, clearly written and easily understood, comprehensive yet concise submission by Arbitrator Ann S. Kenis. Among other roles, she might now appear to be seen as a judicial champion of the students and children of the Chicago Public Schools (CPS). The decision notes forcefully that the students were harmed by these Board and local school practices.
The basic findings: The burden of proof was met by the union, with a financial remedy awarded. On the side of the CTU, the Attorney was Robert E. Bloch. Those who testified were: Susan Zupan, Grievant; Michael Brunson, CTU Recording Secretary; Jackson Potter, CTU Staff Coordinator; and Pavlyn Jankov, CTU Research Facilitator. Present was Karl Hubert, listed as CTU Safety & Security Coordinator (but also the Field Representative for the case).
Everyone else from Douglas Taylor Elementary School (the �et.al.�) was included in the grievance -- every CTU member, virtually the entire faculty and staff. They signed a statement in support of the original sub grievance being filed. The staff have told me to thank everyone from the local school staff through the CTU Grievance and Research Departments to the Union officers over and back to all those involved.
On the side of the Board of Education, the Attorney was Andrew M. Slobodien. Those who testified were: Rohit Paul, Manager "Talent Acquisition"; William Truesdale, Principal, Taylor Elementary School; and Kristine Tiefenthaler, Office of Employee Solutions.
NOTE: A detailed report on the original grievance was posted on Substance at the time the grievance was filed. See Subs lacking in CPS elementary schools and some suggestions for what to do about it ... Board cuts substitute teacher services across Chicago. Included in this December 2012 report are descriptions of 11 impacts to a school�s educational program(s) and the school-wide �domino effects� of not having a substitute teacher on any given day as experienced in CPS.
The City of Chicago and CPS systems of management often appear to exert more effort to silence as well as neglect abuse those who challenge an unacceptable status quo rather than to remedy the egregious issues and situations that might still be brought forth in such a system. The Board fought the Union every step of the way on attempting to resolve this grievance. A general, start-to-finish timeline for the grievance on the lack of substitute teachers at Taylor School, as well as concerns expressed for some of what has happened in the meantime, follow a synopsis of the decision.
DECISION SYNOPSIS:
I. INTRODUCTION II. STATEMENT OF THE ISSUES Did the Board violate the Contract Agreement by failing to maintain and supply substitute teachers at Taylor Elementary School? If so, what shall be the remedy?
III. PERTINANT CONTRACTUAL PROVISIONS
There is full reference to the language of the following contractual provisions: 9-4; 27-1.1; 27-2.1; 27-2.4; 27-3; 27-4; and 27-8.
IV. FACTUAL BACKGROUND
A. Statement of Case
CTU�s case was there were not enough subs to the detriment of the school; BOE�s case was an acknowledgement of a shortage of subs, but this was �beyond its control� with no basis for a financial remedy. B. Substitute Teachers. There is a description of related sources for substitutes, including: Cadre; Day-to-day; and the Aesop system.
C. Events Precipitating the Grievance. Virtually the entire Taylor School faculty and staff signed onto the grievance; the negative impacts of the lack of subs (including splitting students into other classrooms; utilizing teacher assistants/PSRPs for all-day sub coverage; utilizing special education teachers for sub coverage; utilizing preps/specials teachers for sub coverage) had a domino effect in the school. One CTU evidence submission of over 105 days in the 2013-2014 school year demonstrated that there were not subs as needed for 29 days amounting to 30% of the time.
D. The Board�s Defense: The Lack of Substitutes Cannot Be Avoided. The Board testified to multiple reasons including: many qualified individuals do not want to work as subs; only nine of 109 displaced teachers joined the cadre pool; efforts were made to hire substitute teachers; and teachers were confused about the use of their sick days and the banking of them. Data from both parties demonstrated: for one week in March of 2013, for 884-1009 absences there were 299-523 subs, covering less than half of the absences system-wide; and of roughly 3,000 subs less than 10% were cadres.
V. CONTENTIONS OF THE PARTIES
A. THE UNION
B. THE BOARD
This section is an elaboration of section �II. Statement of the Issues.� CTU contended the contract had been violated; BOE described the �extraordinary situation� regarding staffing, and thus the contract provisions were �not an enforceable promise.�
VI. FINDINGS AND DISCUSSION
In this section, the arbitrator states that it is clear that the contract provision for the hiring of cadre subs had not been obtained, resulting in the usage of faculty and staff as described. Taylor School over two school years did not have adequate substitute coverage for 30-50% of the time. While day-to-day substitute teachers work as they choose and may reject assignments, cadre subs are hired full-time with availability for daily assignments. There is a rejection of the BOE�s argument(s) regarding the hiring of cadres. The BOE�s own Comprehensive Annual Financial Report (CAFR) showed unallocated funds that may have been utilized to hire additional cadres.
Principal Truesdale did not offer any explanation for not requesting a cadre for Taylor School. There was no Board of Education data to support the contention that teachers did not have adequate knowledge regarding their usage and banking of sick days. The union met its burden of proof. A remedy will be awarded: �Even though no teachers suffered a monetary loss, the Union has suffered harm with the contract proven ignored.� The Board financially benefited from not hiring a cadre, with the savings forcing faculty and staff to absorb extra students. �I believe the Board has no incentive to correct the insufficiency of substitute teachers unless it is subject to a monetary award for breaching the CBA [Collective Bargaining Agreement].�
�In addition," the arbitrator wrote, "let there be no mistake about this crucial fact: the educational program at Taylor Elementary School suffered as a result of the insufficiency of substitute teachers. The students are the ones who have been denied the full benefit of the education to which they are entitled.�
The remedy is for 1 day of cadre compensation for the 120 days that an absent teacher was not replaced with a substitute teacher at Taylor School. This is to be allocated by the Professional Problems Committee (PPC) at the school and is to be used for student educational programs.
VII. AWARD. The grievance is sustained. The BOE will provide a cadre substitute teacher to Taylor School as well as the financial compensation described above.
Reading this synopsis is not sufficient to understanding the complex history and context of this grievance. Again, Substance readers are highly encouraged to read the entire decision. For those who are interested, a start-to-finish timeline for the grievance on the lack of substitute teachers and other time-lapsed information at Taylor Elementary School follows: -- The Taylor School PPC (Professional Problems Committee) met to discuss and attempt to locally resolve the issue of the lack of substitute teachers (subs) toward the end of the 2011-2012 school year;
-- Principal Truesdale agreed with the PPC on the possible filing of a Union grievance against the BOE, contending that the administration was doing all it could to address the issue at the local level � the BOE was not sending sufficient subs as requested by teachers as well as the office;
-- The situation (lack of sufficient subs) continued into the following school year, resulting in the local grievance being filed with the Union in November of 2012;
-- In December of 2012, the grievance was submitted by the Union to Principal Truesdale as per official protocol;
-- Field Representative Karl Hubert met with CTU Delegate Susan Zupan and Taylor School Principal William Truesdale in his office in January of 2013; it was verbally noted by Delegate Zupan that the local union members wished the grievance to be particularly filed against the BOE because the hiring of subs was not done at the local level, but following protocol the Union first filed the grievance with the principal; Principal Truesdale verbally agreed with the need for the filing of the grievance(see #2);
-- However, shortly following the meeting in Principal Truesdale�s Office, the Union received an about-faced, written response from Principal Truesdale (dated January 30, 2013). In his local denial of the grievance he wrote:
�Dear Mr. Hubert, I have reviewed the grievance from Ms. Zupan and I have carefully considered your comments at our grievance meeting on Wednesday January 23rd. I am denying the grievance and the requested relief for the reasons stated below:
"First, it is somewhat of a myth that there is a shortage of substitute teachers. The fact is that central office reports it has about the same number of substitutes as they had last year and is sending out the same number of substitutes that it did last year, with approximately the same size workforce.
"Second, While the cause of the increased absenteeism can not be known certainly substantial contributing factors are: Teachers lack of knowledge that they lose sick days and they will continue to be banked. i.e. let them understand they will continue to bank benefit days up to 40 days. Third, Central office is hiring additional substitutes to meet the increased demands. There should be a coordinated effort by the union delegate and the school administration to reduce absenteeism and remind teachers of their responsibilities to each other and their students.
"I am willing to work with the union delegate to do that.
"3. As agreed to during our conference I will share information with the local school council NCLB and Bilingual Advisory committee parents of the frustrations of the problem with the deployment of substitutes as it affects the school.
Sincerely,
Dr. William Truesdale
Principal Taylor School
Lake Calumet Network�
In February of 2013 the Union appealed the local decision to the Office of Employee Relations, Thomas Krieger, Assistant Director;
A hearing at 125 S. Clark Street in the downtown offices of the Board of Education was scheduled for March of 2013, but Principal Truesdale requested a postponement, which was granted;
Delegate Zupan attended the rescheduled, downtown appeal hearing in April of 2013, with Principal Truesdale on speakerphone;
Shortly thereafter, the grievance was denied at the Board level;
In May of 2013, the Union submitted a Request for Mediation as well as a Demand for Arbitration for the grievance (officially signed by Karen Lewis, as were all the other CTU submissions to the BOE in this process);
Shortly after that, the Board of Education (signed by Thomas Krieger) did not agree to mediate the case;
� From the local school perspective, time passes �
An arbitration hearing was held in March of 2014;
Final briefs were filed and closed in May of 2014;
Arbitrator Ann S. Kenis�s decision was rendered in July of 2014.
If one of the most important practices for success in life in general, and thusly one of the most important lessons for adults to keep in mind as they also teach this to children/students, is �deferred gratification,� this was that. Taylor School was rated down to a Level 3 Probation status over the course of this time period. CPS�s Lake Calumet Network was reorganized into Network
Eight of the full-time faculty and staff union members who originally signed-on to the grievance are no longer employed (most, egregiously not so) at Taylor School over the above course of time leading to the arbitration decision. Over the above course of time, well over half of the remaining general education and bilingual classroom teachers at Taylor School (K through 8th grade, not counting PreK) have seen their grade level positions and/or subjects taught changed administratively. [For example, this reporter and CTU delegate has been thusly, recently informed of a changed position and subject matter from teaching middle school reading to self-contained first grade for the next school year.]
In addition to the above, CTU officials have noted that Taylor School, though definitely not alone, has some of the most numerous and serious REACH evaluation complaints and concerns from faculty union members in the entire system. [This reporter and CTU delegate appears to be more-or-less predetermined to be rated UNSAT/BASIC as a teacher and is not alone in such an egregious experience.] Is this part of what it means to be union members as teachers and staff out in the schools exercising contract agreement rights within CPS after a seven day strike? Regardless, the arbitrator�s ruling is still, overall, very welcome, morale-supporting and much appreciated, albeit bittersweet �good news� at the local union level two years later.
Ramifications and impacts system-wide are yet to be determined.
It is understandable that the resolution(s) of the issues involved with the grievance might have taken a little time; however and unfortunately, over two years that concept proved to be a gross understatement.
COMPLETE TEXT OF THE ARBITRATOR'S DECISION:
]N THE MATTER OF ARBITRATION BETWEEN CHICAGO TEACHERS UNION and BOARD OF EDUCATION OF THE CITY OF CHICAGO (Grievant: Susan Zupan, et.al.; Attorney Robert E. Bloch), on Monday, July 21, 2014, the final decision from Arbitrator Ann S. Kenis was handed down to the Board of Education (BOE) City of Chicago and the Chicago Teachers Union (CTU) on July 14, 2014.
I. INTRODUCTION The hearing in this case was held on March 17, 2014 at CTU offices, 222 Merchandise Mart Plaza, Suite 400, Chicago, Illinois, before the undersigned Arbitrator who was appointed to render a final and binding decision. The parties were afforded full opportunity at the arbitration hearing to present such evidence and argument as desired, including an examination and cross-examination of witnesses. A 170-page transcript of the hearing was made. Pursuant to the agreement of the parties, the record was supplemented with a substitute teacher log summary and the Board calendars for schools years 2012-13 and 2013-14. The parties filed post- hearing briefs, the second of which (the Board�s) was received on May 27, 2014, whereupon the record was declared closed. II. STATEMENT OF THE ISSUES The Union proposed the following issue to be decided in this case: Did the Board violate the labor agreement by failing to maintain a sufficient pool of substitute teachers and provide them to cover all classes at Taylor Elementary where the regular teacher was absent? And, if so, what shall the remedy be? The Board�s proposed issue is as follows: Did the Board violate the contract by failing to supply a sufficient number of substitute teachers? And, if so, what if anything is the remedy? Although the parties� proposed issues do not differ substantially in any material respect, the Arbitrator finds, after review of the record in its entirety, that the Union�s proposed issue addresses more specifically the subject matter presented in this case. Therefore, the Arbitrator frames the issue consistent with the Union�s proposed issue.
III. PERTINENT CONTRACTUAL PROVISIONS 9-4. PSRP Duties and Responsibilities. Utilization of all PSRPs shall be in conformity with applicable statues and established guidelines. Such personnel shall not be used as a substitute for a teacher except for temporary emergency supervisory duty where the welfare of students is involved. Said temporary supervisory duty shall not exceed sixty minutes. No teacher may leave the teacher�s assigned classroom under the supervision of said personnel, unless said teacher has received the approval of the principal or the principal�s designee. 27-1.1. Staffing. The BOARD shall hire and maintain additional day-to-day substitutes in addition to the nine hundred previously agreed upon to cover the classes of absent teachers so that educational programs in elementary schools, middle schools, education and vocational guidance centers and high schools shall not be curtailed. In removing the ceiling heretofore in effect, it is agreed that the BOARD will diligently utilize all possible means to hire and assign up to three hundred of such additional substitutes. 27-2.1. Establishment of Cadre and Assignments of Cadre Substitutes. Effective July 1 of each year, the BOARD shall establish a Cadre to which it will select and assign Cadre substitutes for each school year to cover the classes of absent teachers in the early childhood centers, elementary schools, middle schools, upper grade centers and high schools. On all student attendance days, through November 1, when the number of teachers absent is less than three hundred, the remaining Cadre substitutes shall be sent to those schools which the Board identifies as having the greatest instructional needs. On all student attendance days after November 1, when the number of teachers absent is less than three hundred, the remaining Cadre substitutes shall be sent to the schools which the BOARD identifies as having the greatest instructional needs. Cadre substitutes may be deployed on a day-to-day basis or may be assigned to a particular school to provide daily substitute services. 27-2.4 Staffing. The number of Cadre substitutes shall not fall below nine hundred. Every effort shall be made to recruit Cadre substitutes who meet the needs of students who are English Language Learners. 27-3. Using Appointed Teachers or TATs to provide Class Coverage. The BOARD agrees, in principle, that no teacher shall be requested to assume responsibility for students from classrooms of absent teachers when substitutes are unavailable. In elementary schools, middle schools, education and vocational guidance centers and high schools, at no time should special education classes nor special programs, such as library, physical education, shop, TESL, bilingual or special reading classes, be discontinued so that substitute service may be performed by teachers of these programs, except in the case of emergencies, in which case the above teachers shall be subject to last call after available non-teaching certificated personnel have been assigned. 27-4. Reporting Absences. Teachers shall report their anticipated absences to the substitute center as early as possible in order to enable substitute teachers to arrive in the school before the beginning time of the teachers� work day. Teachers shall also report their anticipated absences to the school no later than their reporting time. If the teachers cannot report because the telephone lines are busy or similar such occurrences, the teachers shall report as soon thereafter as possible. 27-8. Bilingual Substitutes. The substitute center shall maintain a list of bilingual substitutes and shall make every effort to provide a bilingual day-to-day substitute in the case of the absence of the bilingual teacher.
IV. FACTUAL BACKGROUND A. Statement of the Case This grievance arises under the terms of the collective bargaining agreement (CBA) effective July 1, 2012 to June 30, 2015. The Union contends that the Board violated the CBA by failing to provide a sufficient number of substitutes to cover classes of absent teachers at Taylor Elementary School during the 2012-2013 and 2013-14 school years. As a result of this ongoing failure to provide substitute teachers, the Union asserts, there has been a detrimental and disruptive impact on the educational program at Taylor Elementary School. The Union requests that the Arbitrator order the Board to remedy the situation by providing a sufficient number of substitute teachers and by appropriately compensating Taylor Elementary School�s student educational programs. The Board acknowledges that there is a shortage of substitute teachers within the Chicago Public Schools, but contends that the causes of this shortage are beyond its control. The Board asserts that it has diligently utilized all possible means to hire and assign substitutes to cover classes for absent teachers, but, according to the Board, it is impossible to secure a sufficient number of individuals willing to serve as substitute teachers. Even if the Arbitrator finds that the contract was violated, there is no basis for a financial penalty, the Board argues. Alternatively, any remedy should be narrowly tailored to recognize the extraordinary financial problems and recruitment challenges facing the Chicago Public Schools. B. Substitute Teachers Substitute teachers come from several sources. Cadres are substitute teachers hired full-time for a one-year period. They are paid less wages than appointed teachers but receive most benefits, including insurance. Cadres may be assigned to a single school for the year or they may choose different assignments daily. Day-to-day substitutes are employed only on a day-to-day basis. They are paid a daily wage with no benefits and are free to accept or decline any position offered. 1 [1 The Reassigned Teacher Pool, consisting of teachers subject to daily assignment who are paid full contractual wages and benefits, is also a source of substitute teachers. However, those teachers are not at issue in this proceeding.]
The Board recently computerized its system of assigning substitute teachers. Previously, assigned teachers would notify their local school of an absence within 48 hours of the absence. The local schools would then attempt by phone to locate a substitute for that teacher. Alternatively, some schools used the �path system,� a centralized system in which calls were made at 5:00 a.m. in the morning to obtain substitutes to fill the absences that had been called in to the system the previous evening. The Board has since implemented Aesop, a district-wide online system that streamlines the process and makes it more efficient to utilize substitute teachers. Aesop allows assigned teachers to identify and post their absences far in advance. They can upload their lesson plans to make them available for substitute teachers. Substitutes can utilize the Aesop system to view absences that are posted district-wide. They can select a substitute assignment a day, a week or even a month ahead of time. In addition, administrators can request substitutes through this system.
C. Events Precipitating the Grievance. Grievant Susan Zupan is a teacher at Taylor Elementary School, a pre-K through eighth grade elementary school located on the far southeast side of Chicago. Taylor�s student body is 91% low income, 98.4% non-white (including 88.9% Latino) and 36.8% of limited English proficiency. The school has trailed in academic progress, receiving the lowest overall rating (level 3) and it has logged two consecutive years on academic probation. Student attainment reading and math scores are in the twelfth and fifteenth percentiles nationally, respectively. ISAT test scores are well below the average scores for students at the Chicago Public Schools. At the end of the 2011-2012 school year, teachers began to notice that they were not getting substitutes for their classrooms. The problem continued when the next school year began in September 2012. The teachers met with their principal, William Truesdale, who agreed that the school was not receiving substitutes. The principal and the teachers continued to call for substitutes but nothing improved, so the teachers began to track their requests for substitute teachers. They identified 30 instances from September 21, 2012 to November 9, 2012 when no substitutes were sent to fill in for absent teachers. Thereafter, virtually the entire faculty at Taylor Elementary School signed on to support the filing of the instant grievance.
Grievant Zupan testified that the lack of substitute coverage has a detrimental impact that reverberates throughout the school. She stated that, when there is no substitute teacher, one of several actions may be taken. First, classes with no teacher may be divided and the students sent into other classrooms. The students in these receiving classrooms have a different teacher, different materials and different assignments, thus disrupting the education of both groups of students. The addition of extra students can result in discipline problems, Zupan testified.
Moreover, too many students are then sent to lunch, gym and other classes, creating a domino effect during the school day. Second, non-teachers, such as teaching assistants, may be assigned to teach for an entire day, notwithstanding the contractual language in Article 9-4 prohibiting non-teachers from substituting for teachers for more than one hour. In that circumstance, no certified teacher is providing instruction to students. If assistant principals are directed to cover the absence, then they are unable to perform their own duties which include student discipline. Third, special education programs are cancelled for the entire day if the special education teacher is either absent without a substitute or is directed to teach other classrooms to cover for other absent teachers. When that occurs, the Individual Education Plans (IEPs) for those special education students are not fulfilled as required by federal law. In addition, the special education students are then left in the regular classroom, where the educational materials may be difficult for them to handle. Fourth, other programs, such as bilingual education, art and computer instruction are simply cancelled for the day if the teachers for those classes are not covered by substitutes.
As a result, the students in the school do not receive the full benefit of those programs. Based on the continuing nature of the grievance, the Union was permitted to introduce a summary exhibit which shows that, in the 2012-2013 school year, substitute teachers were not provided to cover at least one absent teacher on about half of the school days for the school year. On many days, over three and as many as six absent teachers had no substitute coverage. During the 2013-2014 school year, there were 105 school days through February 21, 2014 (the last day of records provided by the Board to the Union). In 29 of the 105 school days, or about 30% of the time, the school was unable to obtain enough substitute teachers to cover the classes.
D. The Board�s Defense: The Lack of Substitutes Cannot be Avoided. Rohit Paul, Manager for Talent Acquisition, testified that he is involved in the recruitment of substitute teachers. He readily conceded that there is a shortage of substitute teachers. Some schools suffer more than others due to lack of accessibility by public transportation or because of the areas where those schools are located, he stated. Substitute teachers can pick and choose the schools where they want to work. Thus, some openings remain unfilled because there are no substitutes willing to work a particular day at a particular school. Another challenge, Mr. Paul testified, is that many qualified individuals do not want to work as substitute teachers or are limited in the number of days they can accept assignments as substitutes. He testified that the Board invited 5,000 persons who were pre-qualified to apply for teaching positions through the teacher quality pool to serve in the interim as substitutes; only 400 expressed interest. In addition, bilingual education and special education are considered �high need� subject areas, which means that there a high number of vacancies for full-time positions.
Qualified applicants are generally more interested in full-time opportunities for those positions than substitute opportunities. Moreover, retired teachers are a primary source of substitute teachers but they are prohibited by their pension fund from working more than a certain number of days per year. The Board also offered 109 displaced teachers to join the cadre pool, but only nine accepted the offer. Nevertheless, Board witnesses emphasized that substantial efforts have been made to secure sufficient substitute teachers. The Board has switched to Aesop, described above, an online system that makes it easier to obtain substitutes.
Principal Truesdale testified that in the opening bulletin presented to teachers at the start of the two school years at issue, he has explained the need to properly call off absences through Aesop so as to maximize the likelihood of obtaining a substitute. In addition, certification requirements have been lowered for substitute teachers and, unlike regularly assigned teachers and other Board employees, the Board does not require that substitute teachers live in the City of Chicago. The Board has also held several in-person job fairs across the city. Virtual, online job fairs and phone interviews have also been used to recruit substitutes. Social media have been utilized as well.
Kristine Tiefenthaler, Officer of Employee Solutions, testified that the Board has hired over 800 substitute teachers since August 2012. As a result, there are more substitutes filling absences than in the past. Further, the number of teachers in the system has decreased. Although these two factors suggest that there should have been fewer unfilled absences throughout the system, the trend shows just the opposite, Ms. Tiefenthaler stated. 2 The Board attributes the shortage to the new sick pay policy in the current CBA. The change in the policy related to banking sick days for retirement. Although teachers are still allowed 40 sick days in a short-term disability bank, many mistakenly believed that they had to use their sick days or lose them under the new policy, according to Ms. Tiefenthaler. [2 The use of personal days also increased due to a shift in the cycle in which personal business days are allotted to coincide with the school year.]
The Board compiles data on the number of substitute teachers available for work throughout the system. It also tracks absenteeism and the extent to which teacher absences are covered by substitutes. Generally, the information provided by the parties shows that there are roughly 3,000 substitute teachers but less than 10% are cadre substitutes. In addition, a high percentage of absences are not covered by substitute teachers. Looking at a snapshot of teacher absences for the week of March 18, 2013 through March 22, 2013, the data shows a range of 884 to 1009 daily absences over that five-day period, but only 299 to 523 absences were filled by substitute teachers. Overall, less than half of the absences were filled by substitute teachers.
V. CONTENTIONS OF THE PARTIES A. THE UNION The Union contends that the Board failed to maintain an adequate number of substitute teachers as required under Article 27 of the CBA. In fact, the Board has not come close to the minimum quota of Cadre substitutes contractually required under the contract. As a result of the chronic failure to provide sufficient substitute teachers, the educational programs at Taylor Elementary School have been curtailed. Students and teachers have been adversely affected. The Union asserts that the Cadre pool has been kept irresponsibly low because the Board does not want to pay the additional expenditures for Cadre substitutes. It is the Union�s position that the Board has ample funds available to fully staff its Cadre obligations and therefore the Board�s �inability to pay� defense must be rejected. Accordingly, the Union requests that the Board be ordered to maintain the minimum number of substitutes, particularly Cadre substitutes, in order to fulfill its contractual commitments to cover for absent teachers. Further, the Union requests a financial remedy, equal to one day of Cadre compensation for each day a substitute was not provided to Taylor Elementary School. The compensation would be for the benefit of the school, as determined by a committee consisting of elected teacher representatives and the principals in accordance with Article 1-12 of the CBA.
B. THE BOARD The Board contends, first, that it did not breach an obligation to hire and maintain a specific number of day-to-day substitute teachers. Referencing the �nine hundred previously agreed upon� day-to-day substitutes in Article 27-2.4 of the CBA, the Board asserts that the language is mere surplusage and not an enforceable promise. Thus, the Union cannot meet its burden of proving that crucial element of its case.
The Board directs the Arbitrator�s attention to the final sentence in Article 27-1.1 of the CBA, which states that �it is agreed that the BOARD will diligently utilize all possible means to hire and assign up to three hundred of such additional substitutes.� As the evidence showed, the Board did utilize all possible means to hire substitute teachers. An additional 800 substitute teachers were hired. The number of substitutes in the substitute teacher pool has never fallen below 2,600. Given these facts, there can be no finding that the CBA has been violated. Should the Arbitrator somehow conclude that the Board did not strictly comply with the CBA with regard to staffing of substitute teachers, such non-performance must be excused based on the doctrine of impossibility or impracticability of performance. Literal enforcement of the terms of the CBA would be unjust in the face of the �extraordinary situation� of extreme staffing difficulties and the well-publicized financial shortfall facing the Board. Every possible means has been utilized to obtain substitutes. It simply has not been possible to secure a sufficient number of substitute teachers. Even if the Board could have hired more Cadre substitutes, it would be entirely speculative to assume that this would result in more substitutes on any given day. Equally important, the Union and its members at least partially contributed to this shortage by using more sick days than under the previous CBA.
Finally, the Board contends that a monetary remedy is inappropriate because there has been no evidence that any teacher at Taylor Elementary School suffered financial harm. The Union�s request for a financial penalty is punitive and should be denied. Moreover, any declaratory remedy must be narrowly focused. The Arbitrator should direct that both parties engage in good faith efforts to maximize opportunities to increase the number of available substitutes.
VI. FINDINGS AND DISCUSSION. Perhaps the most effective starting point in this analysis is to examine the language of the contract. Article 27 of the CBA is entitled �Class Coverage.� This provision of the CBA includes nine subsections which govern the means by which class coverage is to be provided by substitutes. Article 27 requires, both in letter and spirit, that the Board must provide substitutes to cover classes for absent teachers. For purposes of this case, we are dealing with day-to-day substitutes and Cadres. Under Section 27-2.4, the CBA imposes a specific obligation: �The number of Cadre substitutes shall not fall below nine hundred.� Section 27-1.1 requires: �The BOARD shall hire and maintain additional day-to-day substitutes in addition to the nine hundred previously agreed upon to cover the classes of absent teachers to that education programs�shall not be curtailed.�
The Arbitrator does not view any of this contractual language as �mere surplusage,� notwithstanding the Board�s arguments to the contrary.
The parties are skilled negotiators. It can reasonably be assumed that the Union and the Board did not include language in their contract which was intended to have no meaning. It is also important to point out that, in addition to the Board�s clear obligations to hire and maintain day-to-day substitutes and Cadres, there are corresponding prohibitions under the CBA against dividing up classes, discontinuing programs or using teacher assistants to cover the classrooms of absent teachers.
Article 27-3 of the CBA states: �The BOARD agrees, in principle, that no teacher shall be requested to assume responsibility for students from classrooms of absent teachers when substitutes are unavailable.� This provision goes on to state that ��at no time should special education classes nor special programs�be discontinued so that substitute service may be performed by teachers of these programs, except in cases of emergencies�.�
By the same token, Section 9-4 of the CBA states that paraprofessional and other school-related personnel (PSRPs) ��shall not be used as a substitute for a teacher except for temporary emergency supervisory duty where the welfare of students is involved� and, in any event, such temporary duty ��shall not exceed sixty minutes.�
Against this contractual framework, a careful examination of the record evidence shows that there was an ongoing failure by the Board to provide sufficient substitute teachers at Taylor Elementary School.
The unrefuted evidence provided by the Union demonstrates that Taylor Elementary School was unable to obtain enough substitute teachers to cover its classes from 30% to 50% of the time during the two school years at issue. The result, predictably, was that students in the absent teachers� classrooms were sent to other classes, thereby disrupting the education of both groups of students. On other occasions, special education and other educational programs were cancelled either because the teacher was absent without a substitute or because the teacher was directed to cover for an absent classroom teacher. Non-teachers were also assigned to cover absences. These are precisely the circumstances which, the parties have agreed, should not be occurring in the Chicago Public Schools. In the face of this apparent violation of the CBA, the Board asserts that it exercised all due diligence in hiring and staffing substitute teachers.
True, the record indicates that 800 day-to-day substitutes have been hired. Moreover, there are regularly scheduled hiring opportunities for additional day-to-day substitutes online, in person and by phone. The Board also implemented a new online system, Aesop, to make it easier for substitutes, teachers and administrators to coordinate and cover teacher absences throughout the system. Nevertheless, as the Board concedes, the hiring efforts have not translated into an increased number of substitute teachers who actually report to the schools to provide coverage for teacher absences. I recognize that part of the broader problem is that day-to-day substitutes are not required to accept teaching assignments on any given day or at any particular location. They can accept or decline any assignment offered.
However, the Cadre force is structured differently. While day-to-day substitutes are free to reject work assignments, Cadres are hired full-time for a year and must accept any assignment given to them. They may be assigned to different schools every day, if necessary, and thus they are always available to fill vacancies from absent teachers. The Board is required under the CBA to have a minimum of 900 Cadre substitutes but, according to the Board�s own statistics, the number of Cadres is woefully short of the contractually required number. The Board contends that the Arbitrator should excuse this deficiency based on the defense of impossibility or impracticability of performance. It argues that �literal enforcement of the terms of the employee collective bargaining agreement would be unjust in the face of the �extraordinary situation� of extreme staffing and financial difficulties facing the Board�.�
The Board�s argument is unconvincing, for several reasons. First, in contrast to the focus on recruiting and utilizing day-to-day substitutes, there is little in the way of probative evidence on the record as to the efforts the Board has made to increase the Cadre force. Ms. Tiefenthaler testified that the Board offered Cadre positions to 109 displaced teachers, but only nine accepted. Neither she nor Mr. Paul offered any other examples of efforts that have been made to recruit teachers into the Cadre. Presumably, if the main reason teachers decline to become day-to-day substitutes is because they seek full time opportunities, as Mr. Paul testified, it would stand to reason that the Board could increase the Cadre force based on their higher rate of pay, benefits and full-time status.
The Board has not persuaded me that �extreme staffing difficulties� excuse noncompliance with the terms of the CBA which govern the Cadre force. Second, the Board asks that I take arbitral notice of the financial difficulties it is experiencing. I do recognize the financial constraints under which the Board operates. The Union countered that argument by submitting the Board�s Comprehensive Annual Financial Report for SY 2012-13, which shows that the Board had unallocated funds to finance additional Cadre.
I need not go that far, however, to conclude that a Cadre teacher could have been provided at Taylor Elementary School without causing financial distress. Principal Truesdale revealed in his testimony that he had utilized a Cadre substitute the previous school year. He offered no explanation why he did not make further use of the Cadre force during the time period at issue.
Moreover, Ms. Tiefenthaler testified that all Principal Truesdale needed to do to get another Cadre was to request one. She insisted that a Cadre would be provided. Based on this testimony, it would appear that there was no financial impediment to assigning a Cadre substitute teacher at Taylor Elementary School.
Third, to the extent that the Board suggested that the unfilled substitute requests were due to teachers requesting too much sick leave, the Board offered no data to support its contention. Board witnesses stated that teachers mistakenly believed they had lost the ability to bank their sick days and so they began using more of those sick days. However, without a sufficient evidentiary predicate, I simply cannot determine if that was in fact the case.
In any event, even if there was an increased use of sick leave, it does not relieve the Board of its contractual obligation to provide sufficient substitutes to cover teacher absences. 16 In sum, I find that the Union met its burden of proving that the Board failed to comply with Article 27 of the CBA, without justification or excuse.
The evidence plainly shows that the Board provided an insufficient number of substitute teachers to cover teacher absences at Taylor Elementary School during the 2012-13 and 2013-2014 school years. There was a resulting domino effect which negatively impacted the school. The CBA prohibits dividing up classes, canceling special education and other instructional programs, and using paraprofessionals and administrators for the purpose of covering teacher absences, yet this appears to be precisely what happened here.
The remaining issue is one of remedy. Both the Union and the Board agree that it is the Arbitrator�s role and responsibility to fashion an appropriate remedy. The purpose of a remedy is to place the parties in the position they would have been in had there been no contract violation. The remedy serves to restore the status quo ante.
The Board argues that a monetary award would be improper and punitive because none of the teachers lost pay as a result of the failure to assign sufficient substitutes to Taylor Elementary School. It asserts that there is no evidence that any teachers had to work hours for which they were not paid. Absent any showing of compensatory damages, the Board contends, a monetary remedy would be in the nature of a penalty which the Arbitrator cannot impose as distinguished from damages for a loss directly sustained. There is no question that restoring the status quo in this case is a difficult matter.
But the Board�s argument has its flaws. The CBA has been broken. That this occurred shortly after the 2012-2015 CBA took effect is troubling indeed. Even though no teacher at Taylor suffered a monetary loss, the Union has suffered harm �- the provisions negotiated by it and for which concessions in other areas may have been made have been ignored.
Moreover, the Board has benefited financially by failing to hire teachers into the Cadre to meet its substitute needs as required by the CBA. As the evidence in this case showed, a Cadre could have been made available to sufficiently staff Taylor Elementary School with a substitute. The monies �saved� by failing to do so forced the staff to absorb all the extra students from classes with no teachers. The failure to provide a Cadre substitute teacher thus provides a proper measure of damages in this case. Even if well-intentioned, I believe the Board has no incentive to correct the insufficiency of substitute teachers unless it is subject to a monetary award for breaching the CBA.
In addition, let there be no mistake about this crucial fact: the educational program at Taylor Elementary School suffered as a result of the insufficiency of substitute teachers. The students are the ones who have been denied the full benefit of the education to which they are entitled.
Merely issuing a prospective order to provide sufficient substitute teachers at Taylor Elementary School will not make up for the harm caused by the canceled educational programs and the instructional time the students already lost. The other factor in this decisional matrix is that any remedy should be tailored to address the substitute shortage at Taylor Elementary School as the proofs in this case have been adduced, notwithstanding the Union�s efforts to obtain a broader remedy.
Accordingly, the Board is ordered to assign a Cadre substitute teacher to Taylor Elementary School to cover teacher absences in accordance with Article 27 of the CBA. In addition, the Union�s request for a financial remedy equal to one day of Cadre compensation, including wages and benefits, for each of the 120 days that an absent teacher was not replaced with a substitute teacher is hereby granted. The money is to be spent on Taylor student educations programs as allocated by the Taylor School Professional Problems Committee (PPC).
VII. AWARD Based on all the foregoing, incorporated herein, the subject grievance is hereby sustained. The Board violated the provisions of the parties� collective bargaining agreement when it failed to supply a sufficient number of substitute teachers to Taylor Elementary School. As a remedy, the Board is ordered to provide a Cadre substitute teacher to Taylor Elementary School to cover teacher absences. In addition, this Award directs the Board to compensate the PPC at Taylor Elementary School in the sum equal to one day of Cadre compensation, including wages and benefits, for each of the 120 days that an absent teacher was not replaced with a substitute teacher. The money is to be spent on Taylor student educations programs as determined and allocated by PPC. The undersigned Arbitrator will retain jurisdiction for a period of ninety (90) days for the sole purpose of resolving any disputes that may arise concerning the remedy portion of this Award. Ann S. Kenis Ann S. Kenis, Arbitrator Dated: July 21, 2014.
