AMERICAN ARBITRATION ASSOCIATION

In the Matter of the Arbitration between

UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO

-and-NEW YORK CITY

DEPARTMENT OF EDUCATION

-X

OPINION

AND

AWARD

Grievance: UI SESIS AAA Case No. 13 390 02826 11

BEFORE:

APPEARANCES:

Jay M. Siegel, Esq. Arbitrator

For the United Federation of Teachers Ellen Gallin Procida, Director, UFT Grievance Department Diane Mazzola, UFT Special Representative Mark Collins, UFT Special Representative

For the New York City Department of Education: Karen Solimando, Esq., Deputy Director - DOE Office of Labor Relations & Collective Bargaining Kellie Terese Walker, Esq., DOE Office of Labor Relations & Collective Bargaining

In accordance with the October 13, 2007 through October 31, 2009 Collective

Bargaining Agreement (Joint Exhibit 1) between the parties ("UFT" and "Department"),

the undersigned Arbitrator was selected by the parties to hear a grievance filed pursuant

to the Collective Bargaining Agreement (CBA) and render a binding determination.

Hearings were held at the offices of the American Arbitration Association in New York,

New York on December 8, 2011, January 4, 2012, February 2, 2012, February 10, 2012,

February 15, 2012, February 16,20127 March 7, 2012, March 21, 2012, March 23, 2012,

April 17, 2012, April 23, 2012, May 10, 2012, May 24, 2012, June 1, 2012, June 18,

2012, September 14, 2012, September 27, 2012, September 28, 2012, and October 5,

2012.

The parties were accorded full and fair hearings, including the opportunity to

present evidence, examine witnesses and make arguments in support of their respective

positions. The record was closed on or about October 19,2012 after the Arbitrator's

receipt of arbitration awards from the parties to supplement their arguments and

additional exhibits.

ISSUE

The parties did not agree to an issue to be decided by the Arbitrator. Instead, each

party submitted a proposed issue and argued why their proposed issue was appropriate.

They then authorized the Arbitrator to determine the issue. The Arbitrator hereby

determines that he will decide the following issues in this proceeding:

1. Whether the instant grievance is arbitrable? 2. If so, did the Department violate Articles 6A and/or 20 of the

Teachers' CBA (and corresponding articles of other contracts) when it: a. mandated the use of SESIS to perform encounter attendance and IEP

related tasks? and/or b. unilaterally implemented SESIS without negotiating with the UFT? or

If the Department violated the CBA, what shall the remedy be?

RELEVANT CONTRACT PROVISIONS

ARTICLE SIX HOURS

A, School Day 1. The school day for teachers serving in the schools shall be six hour and 20

minutes and such additional time as provided for below and in the by-laws. The gross annual salary of employees covered by this Agreement will be increased in accordance with the salary schedules herein.

2. The parties agreed, effective February 2006, to extend the teacher workday in "non Extended Time Schools" by an additional 37 1/2 minutes per day, Monday through Thursday following student dismissal, Friday's work schedule is 6 hours and 20 minutes. The 37 l/2A minutes of the extended four (4) days per week shall be used for tutorials, test preparation and/or small group instruction and will have a teacher to student ratio of no more than one to ten. In single session schools, the day will start no earlier than 8:00 a.m. and end no later than 3:45 p.m.

ARTICLE SEVEN

There are a multitude of provisions in Article Seven that arguably are relevant to this dispute. For example, there are clauses regarding Professional Activity Options stating that "performing] student assessment activities (including portfolios, performance tests, DEPs, ECLAS, etc.) is a permissible activity. There are also provisions recognizing the "basic maximum of 25 teaching periods, five preparation periods, and five professional activity periods for teachers..." Finally, there are provisions stating that, "Teachers will be given a duty-free period for lunch."

ARTICLE TWENTY MATTERS NOT COVERED

With respect to matters not covered by this Agreement which are proper subjects for collective bargaining, the Board agrees that it will make no changes without appropriate prior consultation and negotiation with the Union.

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

All existing determinations, authorizations, by-laws, regulations, rules, rulings, resolutions, certifications, orders, directives, and other actions 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, except insofar as change is commanded by law.

BACKGROUND FACTS

For many years prior to the 2010-2011 school year, it was apparent to the

leadership of the Department that it needed to establish and maintain a data system

capable of tracking critical elements related to compliance for students receiving

special education services (Department Exhibit 24). Indeed, as far back as 2005, the

Department received a comprehensive report from a committee of consultants (known

as the Hehir Report) that recommended changes to the Department's special education

data collection system. The Hehir Report recommended that a system that tracked

elements such as source and type of referral, date of evaluation, nature of evaluation,

program placement, etc., would enable the Department to more effectively manage

special education and better track student performance. (Department Exhibit 25).

Among other things, the Hehir Report expressed concern that the current data system

was antiquated and not user-friendly.

In 2009, then Chancellor Klein received a report on the status of some of the

reforms the Department had previously implemented to improve student performance

for special education students. (Department Exhibit 24). That same report also

previewed the fact that Department had already contracted for "a live IEP-based

interactive data system due to rollout on a pilot basis in the Spring of 2010."

(Department Exhibit 24).

The live IEP-based interactive data system would come to be known as the

"Special Education Student Information System." (SESIS). SESIS was implemented

in a limited number of the Department's schools in the spring of 2010 (i.e., the

2009-2010 school year. SESIS was implemented in more schools throughout the

2010-2011

school year). By the end of the 2010-2011 school year, SESIS had been implemented

in all schools.

As SESIS was rolled out in the 2009-2010 and 2010-2011 school years, its only

use was to develop Individualized Education Plans (EPS) for special education

students. In the past, each special education student's IEP was essentially in hard copy

form and not accessible to educators systemwide. However, under SESIS, anyone

involved in a student's IEP could access a student's records and could work on an IEP

as long as he or she had access to a computer with an Internet connection. Under

SESIS, there would be one record for all student documents related to the IEP and the

data could be tracked by the Department systemwide.

SESIS allowed for the capture and storage of paper documents associated with a

special education student's record. It allowed all of the employees and consultants

involved in a student's special education program and IEP development to view and

print IEP documents that originated from one source. Prior to SESIS, locating a

student's hard copy BEEP could sometimes be a difficult task. Under SESIS, each

student's IEP could be reviewed and modified by the variety of educators involved in

the student's program. Administrators, school psychologists, school social workers,

teachers of speech, speech pathologists, physical therapists, occupational therapists,

etc., all of whom play a role in the development and implementation of a special

education student's IEP, now needed to start using SESIS.

Under SESIS, all staff members involved in a student's special education program

were now responsible for entering their own specific information regarding a student

into SESIS, including Present Levels of Performance (PLOP), measurable annual

goals and reporting progress toward measurable annual goals. Users were required to

log in with a user ID and password, find their own student caseloads, find the right

pages within the IEP that they were responsible for completing and complete the

necessary work.

With respect to the content of IEP's, the hard copy version used prior to SESIS

and the SESIS version that was now being prepared by educators online in this

web-based system was essentially the same1. However, for some educators it was

taking more time to prepare the IEP in SESIS than it had on paper. Some educators

started complaining to the UFT leadership that they were not sufficiently trained on

SESIS. Since they were not properly trained, it was taking them an inordinately long

time to navigate their way through SESIS. Other educators complained that the lack

of computer access during periods when they did not have students prevented them

from using SESIS during the school day. In addition, some educators who had access

to computers could not complete their SESIS tasks in a timely manner because the

bandwidth in their school was not sufficient at certain times of the school day. Thus,

although they could get onto the SESIS system, once they were logged in, each data

entry function in SESIS would take an inordinately long time because the bandwidth

in their school was insufficient.

Finally, others had concerns about the time it took them to get answers when they

had questions about SESIS. The Department had established a SESIS help desk. It

was available to educators to call and ask questions regarding problems they were

experiencing with SESIS. Some educators contended that the wait times lasted up to

1 Around the same time the Department implemented SESIS, the State of New York made some changes to information required in EPS. However, these changes do not impact the outcome of this case.

an hour and that the information they received from individuals working at the help

desk was not useful and did not answer their questions.

As noted previously, when SESIS was only being used for EPS, it was used in a

much more limited way than what was about to occur at the beginning of the

2011-2012 school year. Notably, an IEP mostly gets worked on once a year for each

student. Although there may be referrals to change a student's program during a year,

the IEP for most students typically will be changed on an annual basis and almost

never more than three times in a year. Thus, as the UFT leadership started receiving

feedback during the 2010-2011 school year about the problems starting to emerge

with SESIS related to EPS, the next implementation phase of SESIS, which was

significantly broader and more complex, was around the corner.

At the beginning of the 2011-2012 school year, the Department planned on

implementing the encounter attendance function of SESIS. The Department offered

training to educators throughout the summer and in September 2011, encounter

attendance was up and running. This caused a real strain on the SESIS system

because now educators were expected to use SESIS to record attendance and other

specific information about the services they provided each and every day. For

example, for each student that saw a physical therapist or speech therapist on any

given day, the therapist was now required to log onto SESIS, go to their SESIS home

page, locate the name of the student, click record past services, locate the date of the

session, enter the start time and end time, the service type (i.e., physical therapy or

occupational therapy), whether the student was absent or present, whether it was

individual or group therapy, the service location, the service description and a

progress indicator on a drop down menu (such as whether progress toward IEP annual

goals were met). Then the educator had to type in a specific session note describing in

a few sentences what occurred that day. After this was done, the educator had to

certify this as being accurate and truthful and save the information. (Union Exhibit 9).

When the encounter attendance function of SESIS was fully implemented in

September 2011, it put incredible strain on the SESIS system and on some UFT

members. Thousands of educators were now required to record daily information on

SESIS. Some felt they were inadequately trained or that they received no training at

all. Some described a lack of access to computers to complete their daily encounter

attendance tasks. In other words, some claimed that at the time they had a prep period

to complete their encounter attendance, there was not a computer available to them.

Others claimed that their school's bandwidth was insufficient. Many individuals

claimed that when they went on a school computer during the day, it took several

minutes to complete encounter attendance for each student because each element took

time to get recorded because of the slow bandwidth. More specifically, it was reported

that after each element of encounter attendance was entered (such as clicking on the

student name) that the system would not automatically go to the next screen because

of bandwidth problems. Instead, a circle would appear on the screen as that

information was being recorded on the Web. Since approximately 14 clicks were

required for each student, educators in schools with bandwidth problems expressed

incredible frustration (and fear) about their inability to complete the SESIS data entry

tasks during the school day.

Although much of the same information that formerly was recorded in

handwritten form regarding attendance and session notes now had to be placed into

SESIS, the former paper recording system was fast. It took about one minute for each

student's information to be recorded. With SESIS, educators still had to spend time

creating handwritten notes that took the minute or so per student it formerly took.

Educators had to keep handwritten notes regarding attendance and progress notes

because they could not directly record the information on SESIS while they were with

the students. Educators were finding themselves keeping a paper record to keep track

of the information so they could record accurate information when they were able to

enter the information on SESIS. Thus, the encounter attendance function of SESIS

was taking a great deal of time for many educators to complete because it did not

eliminate the former handwritten notes and for some educators the encounter

attendance function of SESIS had several significant problems.

Educators started complaining to UFT leaders in droves about the problems they

were experiencing with encounter attendance. Since SESIS was now in broader use,

educators using the IEP function of SESIS were also complaining about speed and

functionality issues. Some educators could not complete IEP tasks during the

workday. Consequently, some worked during their lunch, some worked on school

computers after school and some worked from computers at home during evening and

weekend hours. Some educators were concerned that they could be disciplined for

failing to timely complete encounter attendance tasks and some were overwhelmed by

the backlog they were experiencing due to the slow speed of the system during their

workday.

In September 2011, UFT leaders at the highest levels were having discussions

with Department leaders about their concerns about SESIS. The UFT was not

satisfied with the Department's response to its concerns. In one e-mail to Department

leaders dated September 30, 2011, Michael Mendel, the UFT Secretary and Executive

Assistant to the UFT President., wrote that:

"[The UFT will not send the Department] the schools where there are computer problems and WE WILL NOT send any more emails with complaints. There is no need. We all know that SESIS is a systemic problem that is affecting everyone who uses it in almost every school. We all know it affects all of the titles that have to use it. We expect the DOE to do the right thing for their employees. That includes a letter outlining the SESIS problems, reassuring employees that they will not get in trouble if they are unable to complete the SESIS tasks that are being required by the DOE, that nobody is required to do SESIS outside of his or her workday..." (Union Exhibit 6).

At this point (September 2011), the UFT had already filed a grievance regarding

SESIS. The gravamen of the grievance was that the Department had extended the

workday by failing to provide adequate training, equipment, access to equipment,

support, etc., for SESIS-related work. (Joint Exhibit 5). On a case by case basis, the

Department leadership made good faith efforts to inform employees that they would

not be disciplined for failing to timely complete SESIS work. However, the

Department never advised any employees in writing that they were not required to

complete SESIS outside the workday. At the same time, the Department never

directed any employees to perform SESIS tasks outside the workday. It just happened

that way because educators felt they had no choice but to complete their SESIS tasks

outside of the workday.

Throughout the fall of 2011, Department leaders and UFT leaders corresponded

with each other and spoke with each other about SESIS-related issues. Some of the

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issues raised were solved by the Department. For example, on some of the holidays in

the fall of 2011, employees were required to complete encounter attendance for that

day and mark every student as absent even though school was not in session. This was

ultimately a waste of time because school was not in session. After review, this issue

was rectified by the Department

However, the UFT's broader claims of inadequate training and of having the

workday extended to complete SESIS tasks were not rectified to the satisfaction of

the UFT. This was evident to the UFT in the Department's grievance decision of

Octobers, 2011. It states:

The grievance is denied on several bases. First, the Union's contention that there has been a violation of Article 6 is meritless - there is no evidence whatsoever to support its claim that employees were directed to work beyond their contractual work day. Second, this grievance is not arbitrable. In essence, the Union is claiming that the Department's directive to certain titles to enter information in SESIS necessarily results in an extension of the workday - in other words, it is claiming that the Department increased the workload of certain titles without negotiating the impact with the Union...This matter falls squarely within the jurisdiction of PERB and should be adjudicated in that forum. Last, and in the alternative, the Union's claims regarding time, training and resources is simply misplaced -- entering information SESIS replaces what has previously been recorded on paper and therefore several titles have existing time in their schedules to perform this task... (Joint Exhibit 6).

On November 14, 2011, the Union filed a Demand for Arbitration regarding the

SESIS grievance. The matter was then assigned to this Arbitrator for his review and

determination.

A Synopsis of the Evidence and Information Presented by the UFT

The UFT presented two groups of witnesses. The first group of witnesses were

UFT leaders. They testified about the complaints they received from educators out in

the field. More specifically, Mr. Mendel and Carmen Alvarez, the UFT Vice-

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President for Special Education, testified about complaints they received from UFT

members and UFT Chapter leaders about SESIS. Mr. Mendel testified that everyone

in the UFT world was complaining about SESIS whether it be teachers, chapter

leaders or UFT leadership. He testified that "the topics were clear. No time, no access

to computers. When there was access to computers, they worked with great difficulty.

No training." He testified that he learned what bandwidth meant because there were

problems with bandwidth. Mr. Mendel further testified that whereas Department

leaders were telling him that encounter attendance was taking one to three minutes per

student, his members were telling him it was taking up to ten minutes per student. He

explained that since they could not complete these tasks during the day, the UFT

members felt they had no choice but to continue this work outside the workday.

According to Mr. Mendel, UFT members were being told the work had to be done. He

explained that the UFT leadership was receiving complaints from all of the educators

involved with encounter attendance, including but not limited to guidance counselors,

school psychologists, occupational therapists, physical therapists, speech teachers, etc.

Ms. Alvarez testimony was similar to Mr. Mendel's. She described receiving a

wide variety of complaints in writing and via telephone from UFT members and

chapter leaders across the city. She testified that members complained to her about a

lack of training, a lack of equipment and that they did not have enough time in the

workday to complete their SESIS tasks. Ms. Alvarez also testified and presented

information about surveys of UFT members that she oversaw. The survey information

will be discussed later.

12

Rosemarie Thompson, the Chapter Leader for Guidance Counselors, also testified

about the complaints she received from her members. She testified that she directly

received complaints about SESIS from more than 100 of the 3,000 or so guidance

counselors she represents. The complaints had to do with computers not working,

computers being slow and it taking a long time to log on and enter attendance and

session notes.

The second group of witnesses presented by the Union were fact witnesses with

information from the field. In addition to presenting an Assistant Principal, the Union

presented a speech teacher, a special representative of the UFT, a senior physical

therapist, a speech language pathologist, a paraprofessional, a school guidance

counselor, a school psychologist, an itinerant teacher, a special education teacher, a

school social worker, an ESL teacher, and a SETSS teacher, among others.

Leonard DiVittorio, an Assistant Principal at PS 76 who has worked for the

Department for 28 years, testified about the experience his educators had using

SESIS. He testified that his school had two computer labs and several other

computers that could be used for SESIS. He testified that he also used SESIS since he

was the AP in charge of special education at his school. According to Mr. DiVittorio,

the main problem was the system "was extremely slow." He explained that many

employees were working on SESIS during lunch and before and after the school day.

He testified that he spent 45 minutes on hold waiting for the help desk and that he did

not find the help desk to be helpful. He also testified that the paraprofessionals in his

school had to complete their encounter attendance responsibilities after school or

during lunch because paraprofessionals do not receive a prep period.

13

Mindy Karten-Bornemann is a UFT Chapter Leader for Speech Improvement and

has been a speech teacher for 31 years. She testified that she received more than 100

telephone calls from speech teachers who were "desperate about SESIS and their

responsibilities." She testified that people were overwhelmed by having to use SESIS

with limited or no training and that they were also overwhelmed by the time it was

talcing to complete the tasks beyond the workday.

Ms. Karten-Bornemann also testified about her SESIS duties. She testified that

she was in front of the computer every day trying to enter the required information

into SESIS but that she was one and one-half months behind in entering such data.

She testified that in her 31 years of teaching she was never so far behind and never felt

so overwhelmed. She testified that it took her much longer to complete her CEP and

encounter attendance responsibilities on SESIS than it took her prior to SESIS. She

testified that she spent numerous hours working beyond the regular workday to

complete her data entry in SESIS. She testified that one of the speech teachers who

was upset about completing her SESIS work informed her that she was taken to the

hospital for stress related to SESIS.

Finally, Ms. Karten-Borneraann testified about the steps a speech teacher must

complete while working on encounter attendance. She testified that there are 17

different steps for each student and that it currently took her five to seven minutes per

student. She explained that it initially taken her even longer but that her speed had

improved as she became more familiar with SESIS. Nonetheless, despite claiming to

be computer literate, Ms. Karten-Bornemann insisted that her SESIS work took much

14

longer to complete and extended far beyond her workday than it did before SESIS was

implemented.

Ms. Karten-Bornemann videotaped herself working on the encounter attendance

function of SESIS. She testified that the video was representative of her usual process.

The videotape shows that the process is lengthy and that it took longer than one minute

to complete the data for one student.

Senior Physical Therapist Naomi Engelman also testified for the Union. She

testified that during one specific week, she spent an additional six hours outside of

work time working on her lEP-related tasks in SESIS and two extra hours completing

her encounter attendance. She testified that once an IEP is complete that she is

required to fax the attendance sheet from the IEP meeting to the SESIS help desk so

they could confirm official receipt and complete the IEP. She testified about having

trouble getting the fax to go through. When there were problems with the fax, she then

had to call the help desk, which took extra time. She testified that on average she

worked an hour per week beyond the workday to complete her SESIS tasks and that

this increased to two hours on average on weeks when she had lEP-related tasks that

needed completing in SESIS.

Speech/Language Pathologist Blake Rose testified for the UFT. Ms. Rose testified

that her school piloted SESIS in the 2010-2011 school year. Ms. Rose testified that

she received 20 minutes of training prior to having to use SESIS for IEP use. She

testified that the first one took her hours beyond the regular work day to complete.

She testified that she had limited training when the encounter attendance function was

rolled out in September 2011. She testified that her school has enough computers and

15

that her school's bandwidth is fast but that she still cannot complete her tasks during

her work day. She claimed to work every day during lunch or at home because this

was the only time she had available. Ms. Rose also testified about the burdens she

faced after being out of work for six days due to a bout of pneumonia. She testified

that when she returned, she had to complete six days of encounter attendance and that it

took her three hours to complete. Ms. Rose also testified about delays and problems she

has had faxing lEP-related documents. Although Ms. Rose conceded that her time on

SESIS had quickened as she learned the system, she still maintained that it required

her to work beyond the regular workday. Finally, Ms. Rose ultimately created a

document she named "SESIS for Dummies." It has helpful step-by-step hints about the

process for completing SESIS functions. According to Ms. Rose, Department officials

asked her for the document so they could use it for training purposes.

Paraprofessional Linda Buis testified that there is no release time for her to

complete SESIS tasks. Although Ms. Buis has one student that she works with

throughout the day, she is required to record each of his daily activities. She testified

that it takes her between 10 to 20 minutes each day to enter information in SESIS

because there are sometimes delays in the system. Since paraprofessionals do not have

any prep period, she testified that she either completes these tasks during her lunch

period or at home.

School Guidance Counselor Habebullah Hussaini testified that he provides

individual and group counseling as mandated on EPS. He is responsible for

completing several portions of his students' EPS. He testified that the IEP function of

16

SESIS takes longer than the former system because his school is large. He claimed

that when his computer loses its Internet connection, he cannot do his work and that

sometimes the connection is very slow. He testified that the attendance function of

SESIS also requires him to work beyond the workday and that he feels he is always

working to try and catch up.

School psychologist Barbara Mercado testified about her IEP related tasks. She is

assigned to four different schools. She testified that she is on SESIS throughout the

day. She testified that she received limited training and frequently spent between 45

minutes and 2 hours waiting on the line to get answers from the SESIS help desk. She

testified about problems she has had faxing documents and that she spends

approximately 6 hours per week working on SESIS during non-work hours.

Itinerant teacher Beth Schwartz-Haft is a teacher for the deaf and hard of hearing.

She testified that her IEP and encounter attendance duties on take far longer on SESIS

than they took prior to SESIS. She testified that it takes her 5 to 15 minutes per

student depending on how fast the system is working. Ms. Schwartz-Haft testified

that there has been a lot of trial and error on the system and that she is backlogged

one to two months on her encounter attendance.

Special Education teacher Matthew Brown testified about problems he has had

with the IEP functions of SESIS as he does not have encounter attendance

responsibilities. He testified that he spent hours and hours working beyond the

workday to complete his tasks. He testified about waiting as long as 45 minutes to

speak to someone at the help desk. However, by the time Mr. Brown testified, he had

17

become a SESIS liaison. He was given a special telephone number that dramatically

reduced his wait time for answers from the help desk.

School Social Worker Daniela Pozzoglia testified about her SESIS experiences

with IEP work and encounter attendance. She testified that it originally took her

between 45 minutes and one hour each day to complete her SESIS tasks and that it

was only this short if her computer was properly functioning. She testified that she

initially spent six hours per week working outside her work day on SESIS. This

amount of time had been reduced considerably as she has become more familiar with

SESIS. At the time she testified, Ms. Pozzoglia testified that she was spending 60 to

90 minutes per week working beyond the regular day to complete her SESIS tasks.

ESL teacher Patricia Conway testified that she spent approximately six hours per

week working on SESIS from her home. By the time she testified, she acknowledged

that she was spending approximately six hours per month on SESIS work at her

home. She testified that doing SESIS during her prep periods was not conducive

because of other work she needed to do during her prep periods such as lesson plans,

progress reports, grading, etc.

SETTS teacher Karen Simmons testified about her SESIS role. She testified that

she completes her encounter attendance "mostly at home." She said she spends about

one hour per week on attendance outside of the workday and two to three hours per

week outside the workday on IEP work. She said that she cannot complete the work

during the workday because there is just "not enough time in the day."

The UFT also presented employee surveys regarding their experiences with

SESIS. More than 500 surveys were submitted. The surveys are from an extremely

18

small percentage (in some cases less than 1%) of the overall number of teachers in

each title Department-wide. Although some of the surveys indicate that teachers have

enough time to do their SESIS work during the workday, hundreds of the surveys

indicate that teachers cannot complete their SESIS work during the workday. Dozens

of the providers who answered the survey claimed they spend 3 to 5 hours per week

beyond their workday working on SESIS. The surveys reflect concerns and

complaints about many of the same issues raised by the UFT witnesses, namely, it

took too long on SESIS to complete attendance and IEP tasks, long waits to speak

with someone on the help desk, problems with faxes and insufficient training. A

Synopsis of the Evidence Presented by the Department Laura Rodriguez, the

Deputy Chancellor for the Division of Students with Disabilities and English

Language Learners, testified for the Department. She testified about some of the

historical reasons why the Department developed and implemented SESIS. She

explained that for many years the Department has been focused on improving

achievement for students with disabilities. Reports from consultants over the years

made it abundantly clear that the Department needed a more data driven system that

allowed the Department to improve its compliance and better study ways to improve

student achievement. Deputy Chancellor Rodriguez testified that SESIS was

implemented so that the Department would have a comprehensive process to

document and see all student information in one place. It provides educators with the

opportunity to see all student information in one place and has dramatically improved

employees' abilities to access records. Whereas in the

19

past there had been serious difficulties with locating some EPS, now DEPs can be

located within minutes.

Carlo Vialu, the Department's Director of Physical Therapy, testified about the

typical schedules of physical therapists. He testified that physical therapists typically

have 8 sessions per day or 40 sessions per week but that the number of sessions could

be fewer if the physical therapist is assigned to travel between buildings within a

school day. Mr. Vialu testified that physical therapists had similar IEP responsibilities

both before and after SESIS was implemented. He testified that he has been told by

physical therapists that "it takes them 15 to 30 minutes to complete encounter

attendance on SESIS each day and in some schools where the Internet access is slow

it takes them longer."

Shona Gibson, the Executive Director of Operations for the Division of Students

with Disabilities and English Language Learners, testified about the process for

rolling out SESIS in the schools. She testified SESIS was piloted in some schools in

spring 2010 and that starting in November 2010, the IEP function of SESIS was

implemented in a staggered way, i.e., about 200 schools per implementation phase.

This allowed the Department to perform a readiness check for each school. According

to Ms. Gibson, information about SESIS was disseminated to staff and training was

offered. She testified that in 2010-2011 alone, Department records reflect that more

than 8,000 employees attended SESIS training for IEP work. A 350 page manual was

added as a resource on the Department's Website and certain employees, such as

psychologists, were given more specific training. Ms. Gibson also testified about

20

implementation coordinators who were assigned to clusters within the Department to

give more directed training on-site as needed.

Ms. Gibson also testified about the implementation of the encounter attendance

function. She testified that supervisors were trained in the summer of 2011 and that

trainings began with staff in September 2011. She explained that there were several

large-scale trainings offered in the months of September through December 2011, in

addition to a variety of other training opportunities (such as lunch time training and

Web-based training).

Stephanie Downey-Toledo, the Deputy Director of the Department's Special

Education Reform Team and a former speech teacher, testified at the hearing. She

testified that SESIS captures the same essential information that was previously

captured on paper. She testified that it took her the same amount of time to complete

lEP-related tasks both pre-and post-SESIS and that encounter attendance took her

about two minutes per student. Ms. Downey-Toledo testified that SESIS did not

require her to work beyond the workday and that she spoke with several colleagues,

all of whom had similar experiences as she. She testified that she never experienced

any delays or lags when entering information in SESIS.

Lois Herrara, the Department's Director of Support Services, testified about the

duties of guidance counselors prior to and after the implementation of SESIS. She

testified that there were no real substantive changes to the types of information that

needed to be recorded by guidance counselors after SESIS was implemented.

According to Ms. Herrera, guidance counselors have 37.5 minutes to perform IEP-

21

related tasks and there is 20 minutes at the end of their workday available to complete

SESIS tasks.

Suzanne Sanchez, the Director of Occupational Therapy, testified that prior to

SESIS, it was extremely difficult to locate EPS. She testified that she was part of the

group that assisted the SESIS developers. She also testified that occupational

therapists were provided opportunities for instructor-led training. Ms. Sanchez

conceded that the time it takes for OT providers to complete their SESIS work varies

greatly. She acknowledged during her testimony that those employees who don't have

a working computer in a school with decent speed over the Internet take a lot longer

than some of the other therapists.

Helen D. Kaufman, the Administrative Assistant Superintendent for District 752,

testified about her experiences overseeing a variety of educators working in District

75. Ms. Kaufman testified that she had arranged for training so that her employees

could learn to utilize shortcuts that would cut down on the time they spend on SESIS.

She testified that EPS take the same amount of time to prepare both prior to and after

the implementation of SESIS. If anything, she claims the process is faster now as it

used to take several days to gather information relevant to the IEP because it was not

always located in one place. Ms. Kaufman testified that her anecdotal evidence

suggests that teachers in District 75 with small caseloads are spending about 20

minutes per day on SESIS and that teachers with very large caseloads spend up to an

hour per day working on SESIS. She also testified that training in District 75 has been

ample and that she has had no reports of problems with teachers not having sufficient

2 District 75 is a special education district serving approximately 23,500 students with moderate to profound disabilities. It is spread out across 320 sites.

22

access to computers. When reviewing the status of SESIS encounter attendance

information, Ms. Kaufman reported that the majority of teachers are current and that

"there are only a handful that are quite far behind."

Cynthia Aridas, the Physical Therapy Supervisor for District 75, testified that the

time it takes for physical therapists to enter encounter attendance varies depending on

the bandwidth in their school. She explained bandwidth is particularly problematic

between 2pm and 3pm each day because that is the time when most therapists wish to

input attendance into SESIS because they are done with their therapy sessions. She

testified that she has received complaints from physical therapists having difficulty

getting access to a computer. According to Ms. Aridas, her office has found ways to

get therapists better access to computers.

Judy Manning, a Supervisor of Speech, testified that she is familiar with encounter

attendance on SESIS. She demonstrated her use of encounter attendance and

efficiently completed one student's information in approximately two minutes.

However, Ms. Manning conceded that her experience with SESIS has been with

sandbox, which is the sample work one can do on SESIS for training. She has not

completed SESIS in an actual school for an actual student.

Joel Levine, the Supervisor for Occupational Therapists in District 75, testified

that it takes most of his therapists 20 to 25 minutes per day to complete their SESIS

work, assuming the system is functioning well. Mr. Levine acknowledged that when

the computers are working slower, it takes his therapists at least 40 minutes per day to

complete encounter attendance. He conceded that therapists are telling him that the

computer work sometimes takes an inordinate amount of time. He has advised

23

therapists to try to complete their attendance in the middle of the day when volume

may be lighter.

Roslyn Hoff, the Supervisor of Psychologists in District 75, testified that the

social workers, guidance counselors and psychologists that she supervises mostly tell

her that it takes them about 20 minutes per day to complete their encounter attendance

duties. She testified that they have had discussions about accessibility of computers

and that she has told them about computers they can access. She testified that about 6

or 8 staff members have raised concerns about bandwidth and that she has

recommended better times when they can work on the computer.

Chau Ngo, who oversaw the SESIS implementation team for the Department, also

testified about the manner in which SESIS was implemented. She testified that the

team met to discuss known issues in the field, upcoming functionality and how to

improve functionality for users in the field. To that end, she testified that she

regularly met with users to see how they were doing their work and could improve

their workflow. Ms. Ngo testified about the multitude of training opportunities

offered by the Department and the other methods used by the Department to

communicate with users about SESIS.

Jeff Kirsh, the Supervisor of Psychologists for Cluster 4, testified about his

knowledge of SESIS use in the 70 schools with employees he is responsible for. He

testified that individuals following best practices tend to do the same thing both

pre-and post-SESIS. He testified that he has not heard complaints about training from

any of the staff he supervises. He testified that it is rare for anyone to be required to

work beyond the workday to complete their SESIS tasks.

24

Michael Van Biema, the Department's Executive Director for Related Services,

testified about how the Department has attempted to resolve issues with schools

where there is insufficient bandwidth to accommodate SESIS. He explained that after

the UFT raised some concerns about SESIS in the 2011-2012 school year, the

Department implemented a plan to address bandwidth issues. He testified that the

Department identified 374 schools that had the greatest saturation of their bandwidth.

On May 25, 2012, principals in the 374 identified schools were offered a free cellular

broadband card to support SESIS. More than 300 principals accepted the cards, which

were delivered in June 2012. Although only one broadband card was sent to each

school, the card can be utilized by multiple users each day.

Finally, Philip Subhan, the SESIS Functional Manager for the Department,

testified about certain reports that he generated regarding SESIS. Mr. Subhan

presented data about call volume to the SESIS help desk during the week of 8/27/12

to 8/31/12 (a week occurring prior to the opening of school) and call volume to the

SESIS help desk during the week of 9/3/12 to 9/7/12. Mr. Subhan's data suggests that

calls were handled in approximately 10 minutes per call on average during these two

weeks. (Department Exhibit 69).

Mr. Subhan also testified about data he prepared regarding activity on the SESIS

system. For example, he presented activity data for the month of February 2012. It

shows how many people accessed the SESIS system during every hour of each day in

the month of February 2012. The data shows that from midnight to 1:00 a.m. on

February 1, 2012, 286 people were working on SESIS. The data also shows that

between 6:00 p.m. and 7:00 p.m. on February 11, 2012, 5,019 people were using

25

SESIS. It shows that between noon and 1:00 p.m. on February 13, 2012, 12,408

people were on the system. For total numbers within the month of February 2012, the

data shows that 24.17% of use occurred outside of the hours of 8am to 4pm.

(Department Exhibit 79).

Mr. Subhan presented additional data about each month during the 2011-2012

school year. It shows that between September 2011 and April 2012, employees were

logged in to SESIS at times other than 8am to 4pm more than 20% of the time. In

May 2012, this number went down to 17.95% and in June 2012 this number went

down to 16.81%. It is noteworthy that this data included all days of the month,

including weekends and holidays. Thus, from the standpoint of analyzing the data for

time spent during non-work time, it is reasonable to conclude that employees were

logged in during non-work time in excess of 20% for every month. In several months,

this number would undoubtedly rise well above 25%.

POSITIONS OF THE PARTIES

Contentions of the Union

The Union stresses that prior to the time SESIS was implemented, a teacher's

workday was already completely filled up with responsibilities. There was no extra time

during the day for other responsibilities that took additional time. The UFT uses the

metaphor of a bucket filled with water. In the Union's view, when all of the time

consuming tasks of SESIS were added, the additional water added to the bucket could not

be contained and the water overflowed. In real terms, teachers did not have additional

time during the day to complete their SESIS tasks as they already had full schedules.

26

Thus, the Union insists that the implementation of SESIS caused a unilateral increase of

the workday in violation of Article 6A of the CBA as there was no way for teachers to

complete their new and additional SESIS duties during workdays that were already filled

with work. The Union maintains that the Department's implementation of SESIS also

violated Article 20 in that the Department made changes to proper subjects of collective

bargaining without prior consultation or negotiation with it.

The Union stresses that the Department's contention that SESIS is a wonderful

system that captures vital information in the most efficient way is irrelevant to the

Arbitrator's determination. Regardless of the virtues of SESIS, the Union maintains that

there has been a violation of the CBA because SESIS was unilaterally implemented by the

Department and because the additional tasks required by SESIS use required teachers to

work beyond their contractual workday.

The UFT argues that the Department's case did not undermine the strong proof

the Union presented. The UFT maintains that the Department's case emphasized its

commitment to provide equipment and stressed that many issues had been rectified. To

the Union, the Department's strategy of having numerous high-titled individuals testify

about the virtues of SESIS and the Department's commitment to work on and fix its

problems does not change the fact that SESIS has required UFT members to work beyond

their workday. Indeed, the Union notes that several of the witnesses presented by the

Department conceded that encounter attendance took an inordinately long time to

complete and that faxing responsibilities for EPS were unduly burdensome. To this end,

Department witness Suzanne Sanchez testified that encounter attendance takes 5 to 7

minutes per student. Department witness Carlo Vialu testified that when the Internet is

27

slow, SESIS takes a lot longer. Department witness Jeff Kirsh conceded that SESIS has "a

lot of faxing." Finally, Department witness Michael Van Biema's testimony of how the

Department helped the schools with the slowest Internet by issuing one individual cellular

card to nearly 400 schools is absolute recognition that the Department has been unable to

implement SESIS without running afoul of the contractual workday. SESIS burdened the

bandwidth capacity in so many schools that computer systems slowed down. This

prevented teachers from being able to complete their work during the workday. In the

Union's view, the Department's actions show they are keenly aware of this.

The UFT contends that in violation of Article 20 of the CBA, no appropriate

negotiations took place prior to the implementation of SESIS. The UFT notes that when

the Department sought to add time to the workday in the past, it had to negotiate this

issue. The Union maintains that the implementation of SESIS is no different. The Union

insists that the Department should be ordered to cease and desist from using SESIS until

such time as it completes negotiations with the Union over the variety of contractual

issues raised by the implementation of SESIS.

The Union claims that the Department's contention that non-encounter attendance

SESIS functions are not arbitrable because no grievance was filed when they were

implemented is baseless. In the Union's view, SESIS is a single system that became more

problematic as functions were added. In essence, the IEP functions of SESIS became

more problematic when encounter attendance was added because the system became

stressed and overused to the point where thousands of members using all aspects of

SESIS could no longer timely get their work done during the workday.

28

The Union points out that the quality and reliability of the evidence presented by

its witnesses was substantially more reliable, relevant and persuasive than the general

knowledge and information presented by the Department's witnesses. The Union stresses

that it presented witness after witness that uses SESIS in a school setting on a daily basis.

In stark contrast, only one Department witness ever used SESIS is a school setting and

that witness used SESIS for a total of 13 school days. Hence, the clear and consistent

testimony from Union witness after Union witness about the time-consuming aspects of

SESIS and how it required them to spend hours each week beyond their workday is the

best evidence and wholly supports the Union's contentions.

The Union asserts that the survey information it presented strongly bolsters its

live witness testimony. The Union observes that it submitted more than 600 surveys into

evidence. The surveys show that a great majority of teachers said there was not enough

time in the workday to complete SESIS tasks. Contrary to the Department's protestations,

the Union maintains that its combination of live witness testimony coupled with the

surveys gives a very clear and consistent picture of what is happening in the schools and

conclusively establishes that SESIS requires its members to work beyond the workday.

The UFT contends that the Arbitrator should draw a negative inference by some

of the evidence the Department failed to produce. The UFT asserts that it speaks

volumes that the Department presented no information about the SESIS survey it

conducted. Moreover, while the Union presented several witnesses who spoke about their

personal delays waiting for a response from the help desk up to as long as 45 minutes, the

Department presented virtually nothing about the waits on the help desk. Of significant

note to the Union is that the Department presented help desk waits for one week prior to

29

the beginning of the school year and help desk waits in the first week of the school year

when students are only partially attending school. The Union insists that this information

is not representative of wait times for the help desk and is ludicrous information to

present. The Department's failure to present any relevant data about help desk waits

speaks volumes. To the UFT, the only logical conclusion to draw is that the waits were

inordinately long. This is what UFT witnesses said and this is what Department witnesses

conceded. In fact, the Union notes that Director of Special Projects Chau Ngo

acknowledged that wait time was "a lot higher" after the initial deployment but that is

now it is "definitely less than 45 minutes."

In the Union's estimation, equipment and bandwidth problems are major factors

that contribute to the time required to complete SESIS tasks. The Union noes that

psychologist Barbara Mercaldo works in four different sites. At one site, she has a new

computer, at two sites she has computers that are approximately 12 years old and at

another site she has to look around to find a computer to work on. According to Ms.

Mercado, problems with faxes and faxing in general have also caused serious problems.

She testified that in one school she works at she sometimes has no access to a fax

machine. In March 2012, she testified that there were faxing issues systemwide for three

weeks and that this led her to purchase her own fax machine. Similarly, Blake Rose

testified that she has to wait in line to use the fax machine and that it is shared by 100

people. Since faxing of documents for EPS to be completed was not required pre-SESIS,

this has added a clear and unmistakable time burden to UFT members.

In the Union's view, the bandwidth problem is staggering. As stated previously,

the Chancellor even agreed to meet with UFT members to discuss bandwidth issues.

30

Although the Chancellor agreed to meet with members, the solution was so modest and

so delayed that it did not improve anything during the 2011-2012 school year. Indeed, the

short-term fix was to provide 300 schools with the greatest saturation with a single

broadband card that only one person can use at a time. This limited help, coupled with the

fact that the cards were not received until June 2012, shows that the Department's

solution did not help reduce the amount of time members had to work beyond their

workday during the 2011-2012 school year.

The UFT claims that the Department's defense that it never ordered anyone to

work beyond the workday is preposterous. The Union maintains that requiring members

to work beyond the workday is inherent in virtually every message the Department has

sent to its members regarding SESIS. The Department's Webinar hints that help desk time

is shorter after work and the Department provided members with Think Pads to take home

for SESIS use. The Department's training materials emphasize that SESIS can be

accessed from any computer at any time.

It is universally understood that the information being captured on SESIS is

highly important work that cannot be disregarded or ignored. Indeed, two Department

witnesses testified that they use SESIS to check and make sure the staff they supervise

are up to date. The Department expected SESIS work to get done. It was fully aware that

UFT members were working well beyond their workday to keep up to date. It never

advised anyone not to work beyond the workday and/or that it was permissible to fall

behind.

The UFT emphasizes that the encounter attendance function of SESIS is

particularly time consuming and requires thousands of educators to work beyond their

31

workday. It takes 17 clicks to complete attendance for just one student. To the Union, the

Department's claim that this is tantamount to the time it formerly took educators to circle

in a bubble sheet to note absent or present borders on the absurd. Moreover, since

educators cannot complete their SESIS work while students are present, they are

obligated to keep attendance notes and session notes in contemporaneous handwritten

form so they have accurate information when they get access to a computer and certify

that the information they are providing is accurate.

The UFT insists that even though Department Exhibits 70-78 are flawed, they

strongly bolster the Union's case. By their numbers, they show that more than 25% of

SESIS use occurred outside the workday of Sam to 4pm. The Union argues that the true

number of teachers working on SESIS beyond the workday is far greater than this for a

number of reasons, including:

• The Department's statistics count work on weekends and holidays between 8am

and 4pm to be during the workday even though this clearly is not the case.

• The Department's statistics count an 8 hour day even though the teacher work day

is roughly 7 hours.

• The Department's statistics do not account for time teachers spent working on

SESIS during their duty-free lunch period.

For these reasons, the UFT analyzed the data prepared by the Department and

presented it in a way that is much more accurate in providing a true picture of the amount

of time teachers spend working on SESIS outside of the teachers' workday. When the

statistics are analyzed using a 7-hour workday and not including weekends, the data

shows that approximately one-third of SESIS use occurs outside of the workday. That is

32

the real statistic and it should be given far more credence than the Department's statistics.

Moreover, the Union stresses that these statistics are the bare minimum of time spent

beyond the day because duty-free lunch is not accounted for and the data records the time

the information is certified. It does not show the amount of time each provider is logged

on to SESIS, something the Department has access to and which would be far longer.

The Union maintains that the Department has all of the data regarding SESIS use

outside the workday at its fingertips. Yet instead of providing relevant data, the

Department presented Department Exhibit 85, which details how much SESIS work

occurs between 7am and 6pm each day. To the Union, this is wholly irrelevant as it

captures data well past the end of the school day and includes weekends.

As for remedy, the Union maintains that merely paying employees for their time

spent beyond the workday is not sufficient because allowing SESIS in its present form to

continue will mean that the Department can keep adding functions to SESIS and

disregard its members' contractual workday. Along with compensation, the Department

must be prohibited from adding new functions to SESIS until it completes negotiations

with the Union over SESIS.

The Union argues that there are precedential awards supporting its cease and

desist remedy. In the UI Para Faculty case, Arbitrator Riegel ordered that the Department

cease and desist from requiring paraprofessionals to attend faculty conferences and

ordered that those paraprofessionals who attended conferences be compensated for their

attendance. In the UI Para Time Clock case, Arbitrator Wittenberg ordered the

Department to cease and desist because it made unilateral changes without negotiating.

Finally, in the 2003-2007 CBA, the parties negotiated an extension of the workday. When

33

work time is extended, the parties must negotiate and the Department should be required to

cease from using SESIS until negotiations take place.

Although the UFT feels it can ask the Arbitrator to exercise his authority and shut

down SESIS, the UFT is not making such a request at this time. Rather, it is requesting

compensation and that the Department be prohibited from adding new SESIS functions

until such time as it negotiates with the Union. If the parties are unable to resolve the

negotiations after three months from the date of this Award, the Union would seek a

comprehensive cease and desist order. The Union also suggests that the Arbitrator assist

the parties with their negotiations during this period.

For backpay, the Union contends that back pay must be computed at a pro rata

rate because there is arbitral precedent for paying at a pro rata rate and because this is not

per session work. Per session payments under the Chancellor's regulations cannot be

made for work that is an extension of the employee's primary job responsibilities. Since

SESIS is primary work, it must be paid at a pro rata rate. The Union suggests three

options for the Arbitrator to compensate its members:

1. Order the Board to print out a complete schedule of all SESIS computer time.

The Arbitrator must also factor in faxing and time spent during lunch. The Union

is certain that the Department has access to data showing how much time each

SESIS user has worked beyond the workday and that if some formula were added

to account for faxing time and lunch work, members could be properly

compensated. However, since this will require an analysis of every SESIS user's

data, the Union concedes that this might not be the most practical solution. If this

solution is ordered, the Union requests that it be furnished with this data within

34

two weeks after issuance of the award and that payment be required within 45

days after issuance of the award.

2. Have UFT members submit an affidavit attesting to the number of hours worked

outside the workday. According to the UFT, the parties have used his option in

the past.

3. Compensate people by title using the UFT surveys and the testimony of UFT

witnesses. Based on the UFT's analysis of this information, it suggests that each

of the following titles receive the following amount of weekly pro rata

compensation during the 2011-2012 school year and each week of the current

school year until completion of negotiations or until such time as the Department

is ordered to cease and desist from requiring SESIS tasks be completed outside

the workday.

a. ESL Teachers -1.5 hours per week.

b. Special Ed Teachers - 2 hours per week.

c. Guidance Counselors - 3 hours per week.

d. Speech Teachers - 5.5 hours per week.

e. Occupational and Physical Therapists - 5 hours per week.

f. Psychologists and Social Workers - 3.5 hours per week.

g. Paraprofessionals - 1 hour per week.

h. General Education teachers - 1 hour per week,

i. Hearing Ed and Vision Ed - 1 hour per week.

35

Finally, the Union requests that the Arbitrator order the Department to cease and

desist from requiring UFT members, by action or deed, to complete their SESIS tasks

outside the workday. Contentions of the Department

The Department asserts that the grievance is much more limited and

straightforward than the Union is attempting to make it. The Department stresses that the

Arbitrator should take notice of the backdrop under which SESIS was developed. It was

not devised out of thin air. Rather, after litigation spanning the course of many years and

consultant reports as to how to improve its special education program, it became

abundantly clear that the Department needed to significantly upgrade its systems for

collecting and tracking data for special education services. SESIS was developed to

address these concerns and goes a long way toward meeting the Department's goals. The

Department points out that SESIS is in its infancy. For users, it gets better and more

efficient each and every day.

The Department contends that some of the Union's claims at the beginning of this

case were riddled with hyperbole and completely unsupported by the evidence presented.

The Department asks that the Arbitrator consider the following:

• Although the Union claimed that paraprofessionals did not have time in the

workday to enter SESIS information, this evidence was not presented.

* Although the Union claimed that physical therapists and occupational therapists

did not have time to do SESIS work due to other work activities, the evidence

established that those other activities took a minimal amount of time and that

these employees had time within the workday to work on SESIS.

36

• The Union's claim that speech teachers see as many as 40 students is not true as

the largest load for speech teachers is 24 students.

° Although the Union claimed that its members did not have access to computers,

many of its witnesses conceded that they had excellent access to computers.

Indeed, the Department notes that Blake Rose testified that she had access to two

computers and Leonard DiVittorio testified that his school has 100 computers.

• With respect to bandwidth issues, the Department showed that it took concrete

steps to rectify bandwidth concerns in 374 of the Department's schools.

• Although the Union claimed that encounter attendance took an inordinate amount

of time, in the two demonstrations presented to the Arbitrator, the system did not

take an interminable amount of time to load and function.

The Department insists that the IEP aspect of this case is not arbitrable. The

Department stresses that this function of SESIS was implemented in some schools in the

2009-2010 school year and that it was implemented in all schools during the 2010-2011

school year. The Department claims that this aspect of the grievance should be dismissed

because the CBA requires that a grievance be filed within 30 days of the incident giving

rise to the grievance. The Department stresses that Carmen Alvarez testified that the

encounter attendance function of SESIS was the "game changer." To the Department, this

is what the grievance is truly about. Hence, the grievance regarding the IEP function of

SESIS must be dismissed.

The Department avers that there is no evidence that the Department has directed

even one UFT member to complete SESIS beyond their contractual workday. Nobody

testified that they received such a directive and there was no evidence that the

37

Department has ever issued a written directive to this effect. In fact, Mr. Kirsh testified

that he told UFT members not to work beyond their regular workday.

The Department argues that the only logical conclusion to reach from the UFT

surveys is that they are unreliable. The Department stresses that an extremely small

sample of the entire bargaining unit was introduced into evidence. In some cases, less

than 1% of employees in a specific title responded to the survey. The Department

contends that it would be inappropriate to draw any conclusions from a survey with such

a small sample. The Department surmises that the survey participants were so low

because roughly 80% of the UFT members are completing their work during regular work

time.

The Department considers it highly relevant that many of the detailed surveys

were completed during the teacher workday. To the Department, the information required

to complete the survey was far more detailed than the information required to be

completed when working on encounter attendance. Whereas in SESIS there is a lot of

prepopulated information that can be completed by one click, the information required in

the survey required writing. The Department observes that the only writing required in

SESIS are session notes and these are recommended to be done in a few short sentences.

In the end analysis, the Department argues that if teachers can find the time to complete

surveys during the workday, they surely have the time to work on SESIS.

The Department maintains that there are numerous opportunities throughout the

school day for educators to complete their SESIS work. For example, the evidence

demonstrates that speech teachers have 5 sessions per day and see between 8 and 24

students. Two to three periods per day are available to perform SESIS work while speech

38

teachers are not with students. The Department avers that this is bolstered by the

testimony of witnesses presented by the Union, most of whom acknowledged that SESIS

can be done during prep periods, administrative periods or professional periods.

The Department cites several other schedules of educators that are in evidence.

The Department notes that Department Exhibit 34 shows that the teacher sees between 13

and 24 students each day. Department Exhibit 40 shows that the teacher sees between 13

and 17 students per day. Since each speech teacher receives a prep period and an

administrative period each day, and since some teachers conceded that it takes them

approximately 1 minute per student to complete encounter attendance, it becomes

abundantly clear that SESIS work can and mostly is completed during the teacher

workday.

The Department insists that the Union's claims about the time it takes to do

encounter attendance and the burdens it places on teachers are overblown and not

substantively different than what was formerly required of teachers. The Department

asserts that the biggest task in encounter attendance is completing the session note. Thus,

whereas teachers formerly wrote a session note and kept them in different formats and in

different places, teachers now write the same session note. They simply type the

information in the same place so that instead of having notes that exist in a variety of

forms, they now are entered in a central database so the Department can make

data-driven decisions. In the Department's view, Union witnesses and its witnesses,

including Ms. Downey-Toledo, all agreed that they were required to complete a session

note prior to SESIS and that the session note they were required to complete in SESIS

was not substantively different. Hence, the Department questions how it can be shown

that

39

teachers are spending more time on SESIS than they formerly spent performing this

work.

The Department argues that the other information required to be completed in

SESIS encounter attendance is not time consuming. The Department stresses that there are

lots of commonalities in the information that is required to be entered. Most of it is

provided via a drop down menu that requires a simple click. Also, many of the

substantive session notes share commonalities where the substance of the note is

frequently repeated.

Thus, while the UFT contends that its members need 5 to 10 minutes to complete

each student's SESIS data, the Department contends that the evidence is wholly different.

The Department asserts that Ms. Karten-Bornemann completes her session notes in less

than three minutes per student and that she worked an extra 12.8 minutes per day on

average throughout the 2011-2012 school year. According to the Department, this is far

less than she suggested in her testimony. Even more compelling is that while Blake Rose

testified that it takes her three to five minutes per student, the evidence presented by the

Department shows that it takes her less than one minute per student. In addition, while

Ms. Rose testified that she works at night completing SESIS, the Department's data

shows that this simply is not true and that she worked a mere 36 minutes outside the

workday.

The Department asserts that Ms. Rose's schedule is much more representative of

speech teachers than Ms. Karten-Bornemann's. To the Department, the reality is that

speech teachers have time to get a great majority of their SESIS work completed during

the workday.

40

The Department argues that there is no basis for any relief for psychologists

because they do not have any encounter attendance responsibilities. In the Department's

view, the evidence in Department Exhibits 56 and 57 shows that they have time built in

to their schedules for SESIS work. More importantly, the substantive IEP work did not

change. Testimony and documentary evidence shows that the IEP process went from

being a paper process to one where the information is put into SESIS. Department

witnesses said the time difference is a wash. Some things are quicker in SESIS than they

used to be and now all records are available online to all providers. Moreover, Mr. Kirsh

testified that he had authorized per session payments for psychologists who could not get

their work done during the workday and psychologists are provided with clerical support.

To the Department, the only logical conclusion to draw is that the Union's claim has no

merit insofar as psychologists are concerned.

The Department avers that a similar picture is present for social workers and

guidance counselors. The Department maintains that SESIS simply supplanted the

handwritten with information put into SESIS. The Department stresses that guidance

counselors contractually work beyond the student day so that there is time between

sessions to complete their SESIS work. Again while the UFT claims that it took its

members five minutes or more per student, Guidance Counselor Hussaini's records show

that he completed SESIS in 1.25 minutes per entry. School Social Worker Pozzaglia

completed her attendance records in 2.70 minutes per entry and worked a total of 719

minutes after her workday throughout the 2011-2012 school year. To the Department,

this again shows that the Union's claims are unfounded and severely exaggerated.

41

The Department asserts that physical therapists and occupational therapists see 8

to 10 students per day and have 30 minutes of time set aside in their schedule to handle

documentation such as SESIS. The Department insists that the information formerly

recorded by therapists is virtually identical to the information they are required to record

in encounter attendance. Much of the information is pre-populated making it easier in

many respects.

The Department concedes that physical therapist Naomi Englelman has done a

fair amount of SESIS work outside the workday. However, the Department stresses that

her situation is out of the ordinary and not demonstrative of the norm. The Department

notes that only 9 physical therapists responded to the UFT survey, showing that SESIS

was not a major issue for physical therapists. In total, only 1.9% of occupational

therapists and 1.5% of physical therapists responded to the surveys. This, coupled with

the fact that they have sufficient SESIS time built into their schedules, shows that the

claims for therapists should be rejected.

Scant evidence was presented for hearing and vision providers in the

Department's view. While Ms. Schwartz-Haft testified about her difficulties completing

SESIS work during the workday, the Department maintains that she has time built in her

schedule when she can perform SESIS. In the Department's estimation, since she is

assigned to work with only five students per day, she has a limited amount of time to

spend on SESIS. With only three vision and seven hearing teachers responding to the

survey, the Arbitrator should find that this is not a systemic issue and dismiss this aspect

of the grievance.

42

The Department argues that the Union's claim for paraprofessionals is greatly

exaggerated and that their work outside the workday may add up to one minute per day.

According to the Department, Ms. Kaufman testified that the Department had seen to it

that paraprofessionals were given time within the day to complete encounter attendance.

Less than 0.2% of the paraprofessionals Department-wide responded to the survey and

Ms. Buis, the one paraprofessional who testified, ended up working a mere 271 minutes

beyond the workday for the entire year.

The Department argues that while some schools had insufficient bandwidth, it has

rectified some of these problems and is constantly monitoring this issue. Other examples

where there was an initial problem that was quickly rectified include a couple of holidays

when employees initially had to complete encounter attendance. The Department was

informed of this problem and quickly remedied it. The help desk has also been markedly

improved. The Department realized that there were concerns about wait times and it

made changes to the system. One employee in each school now has a special express

telephone number for SESIS issues and overall wait times have been dramatically

reduced.

The Department avers that since SESIS has essentially supplanted the variety of

methods teachers formerly used to record information, the grievance should be dismissed.

More importantly, the Union's request for a cease and desist order should be summarily

rejected. In the Department's view, SESIS is a crucial piece of its special education

reform and well within its management rights to implement.

In the event the Arbitrator finds there is a contractual violation, the Department

argues that no monetary relief should be awarded. In the Department's view, any extra

43

work performed by UFT members is de minimus as most people have time built into their

schedules. If any monetary relief is to be awarded, the Department asserts that it must be

based on an individualized assessment to determine which teachers actually spent time

working on SESIS after the regular workday.

OPINION

At the outset of the hearing, the Department claimed that the Arbitrator did not

have jurisdiction over this case because the UFT had filed an improper practice charge

with the State of New York Public Employment Relations Board (PERB) regarding the

very same facts and issues that were alleged in the grievance. After considering the

arguments of the parties, the Arbitrator dismissed the Department's arbitrability claim.

The Arbitrator reached this determination because the grievance alleged very specific

facts that, if proven to be true, constituted a violation of the CBA.

PERB has a longstanding and well known policy of initially deferring its

jurisdiction to a contract arbitration procedure when the facts alleged in an improper

practice charge and grievance appear to be the same. There is no arbitral deferral policy

that this Arbitrator has ever seen or been made aware of. While PERB's deferral policy is

well known and longstanding, the argument made by the Department (i.e., that the

grievance is not arbitrable because an improper practice charge regarding the same

dispute has been filed with PERB), is not a historically recognized or known theory in the

law of the workplace. The Arbitrator has not seen any decisions that would divest him of

jurisdiction just because an improper practice charge was filed on the very same issue.

Since there is no precedential basis for the Arbitrator to rule that this case is not arbitrable

44

and since the Arbitrator determined that if the Union proved the facts alleged in the

grievance it would constitute a contractual violation, the Department's arbitrability claim

is rejected and dismissed. The Arbitrator has jurisdiction over the Union's claims that the

CBA has been violated.

In its closing argument, the Department also contended that the Union's claims

regarding the IEP functions of SESIS were not timely. The CBA requires that a grievance

be initiated within thirty school days after the employee has notice of the condition giving

rise to the grievance. The Department claims that since the 3EP function of SESIS started

getting implemented in some pilot schools in the 2009-2010 school year, and since the

3EP function of SESIS was implemented in all schools prior to the end of the 2010-2011

school year, the Union's June 2011 grievance was not timely.

The evidence establishes that this grievance concerns both the IEP functions of

SESIS and the encounter attendance functions of SESIS. Based on the evidence in the

record, it is clear that the encounter attendance function of SESIS caused SESIS to be

used in a far greater way than SESIS had been used when the IEP function was the only

function being utilized. Once the encounter attendance functions were implemented,

thousands of teachers were required to use SESIS each day. This put a strain on all

resources related to SESIS, whether it was the availability of computers, the availability

of personnel to handle calls at the help desk or bandwidth. It also put a strain on all the

educators using SESIS. Whereas they may have previously been able to complete some

of the IEP functions of SESIS within their workday, the ability of thousands of educators to

complete all of their SESIS tasks during their workday cumulatively came to the fore as a

serious problem after the encounter attendance function of SESIS was implemented.

45

It is the cumulative SESIS tasks of the IEP function and encounter attendance function

that created a crunch on the Department's resources and provided such a challenging

environment that many educators using this system felt they could no longer complete all

of their required work within the contractual workday. Although much of this dispute is

about encounter attendance, it is the SESIS-related tasks, including the IEP functions, that

emerged as a cumulative problem at the end of the 2010-2011 school year and beginning

of the 2011-2012 school year. This is when unit members started complaining about

SESIS. This is when the UFT leadership started hearing complaints about SESIS. And

this is when the UFT filed a grievance regarding SESIS tasks. To the Arbitrator, the only

logical conclusion to reach is that the IEP component of this grievance is timely. Hence,

the Arbitrator rejects the Department's claim that the IEP function of the grievance was

not timely filed.

Turning to the merits, the Arbitrator determines that the Union has met its burden

of establishing a violation of Article 6A of the CBA and corresponding articles from

other contracts. The Arbitrator reaches this conclusion because the evidence establishes

that the implementation of SESIS duties required thousands of bargaining unit members to

work beyond their contractual workday on a regular basis. The Arbitrator finds that there

is no violation of Article 20 of the CBA.

The Arbitrator will first explain why there is a violation of Article 6A. Article 6A

and the workday provisions from the other relevant CBAs provide very clearly delineated

work times with clear limitations insofar as the amount of time teachers may work each

day. For teachers, the workday is 6 hours and 20 minutes, plus an additional 37 1/2

minutes per day on Mondays through Thursdays that was agreed to in 2006. The

46

provisions of the CBA also provide each unit member with a guaranteed duty-free lunch

period. Thus, when, teachers are required to work more than roughly 7 hours per day or

when teachers are required to work during their duty-free lunch, they are working beyond

their contractually guaranteed workday. Stated another way, in exchange for the salaries

the Department agreed to pay teachers, the Department has the right to expect teachers to

work their full contractual day. However, the Department does not have the right to assign

teachers tasks that routinely require them to work beyond their contractual workday.

Article 6A has been violated because SESIS duties took too long to complete within the

workday.

The Arbitrator reaches this conclusion based on the totality of the evidence

presented. It began with Michael Mendel, the Secretary for the UFT and Executive

Assistant to the President, and Carmen Alvarez, the UFT Vice-President for Special

Education. They both testified convincingly that starting in June 2011, SESIS had become

a widespread problem among OPT members. Mr. Mendel testified that he first heard

about SESIS in June 2011, which was when "the UFT world came and complained to

him." He explained that he heard about this from Ms. Alvarez and scores of other people

in UFT leadership roles that were hearing complaint after complaint from teachers

working in the field. He testified that he heard about it directly from teachers. He testified

that the "topics were clear - no time to complete the work, no access to computers. When

there was access some computers worked with great difficulty. No training." He testified

"that he also learned what bandwidth meant." He explained that many teachers were

complaining that their computers worked too slowly because there was not enough

bandwidth in the schools.

47

Mr. Mendel went on to explain that he was hearing from the field that SESIS was

adversely affecting employees in every title involved with special education services,

such as therapists, counselors, paraprofessionals, speech teachers, etc. Mr. Mendel

testified that he personally read e-mails from members "that led him to believe that

SESIS was a disaster." He testified that he was reading e-mails from members

complaining about not having enough time, not having enough equipment, having

problems with bandwidth, i.e., that the computers were working too slowly. Ultimately,

he testified that his members were repeatedly telling him that they were very upset and

that many of them were having to do their SESIS work at home in order to complete it.

The Arbitrator credits Mr. Mendel's testimony for several reasons. He presented

as both passionate and credible. After learning about his members' problems, he

immediately followed up by reaching out to the highest levels of the Department to see if

the situation could be rectified. This is evident from contemporaneous correspondence he

sent to the Department and meetings that were subsequently held between the leadership

of the Department and the UFT. Mr. Mendel's testimony is also credited because it

comported with much of the other evidence in the record, namely, testimonial evidence

and documentary evidence establishing that there were thousands of employees working

on SESIS outside of their workday.

The other broad overview testimony that was presented came from Ms. Alvarez.

Her testimony was credible because she shared essentially the same story as Mr. Mendel

of problems her members were having with SESIS. Indeed, she is the individual who

started bringing some of her teachers' concerns to Mr. Mendel after she was having

trouble getting anything rectified to the satisfaction of herself or her members. She

48

testified that her members "were not having an easy time" with SESIS. She was receiving

common feedback from members that there was not enough time in the day to complete

the work, that there was not enough training prior to its implementation, that the

equipment in many schools was making it difficult for multiple people to work on SESIS

at the same time either because of limited access to computers or because bandwidth was a

problem. She testified that her members were reporting to her that they were stressed out

and had no choice but to complete their work either before or after the school day and

often from home.

Other broad and comprehensive testimony that was convincing was presented by

Mindy Karten-Bornemann, the UFT Chapter Leader for Speech Improvement and a

speech teacher herself. She testified that she received more than 100 complaints about

SESIS from speech teachers she represents and that she reported this to Ms. Alvarez to

see if this situation could be rectified. She testified that people felt overwhelmed by the

time it was taking to complete their SESIS duties. She testified that people "who never

came to meetings suddenly showed up because they were upset with the amount of work,

when they were going to do it and they wanted guidance." She testified about computers

and training being significant complaints and that her members "complained about

bandwidth slowing them down,"

Ms. Karten-Bornemann's testimony was also persuasive because she not only

testified about complaints she was receiving from members in the field but she was also

struggling to complete her SESIS work. She testified that she was more than one month

behind on SESIS and that completing her SESIS work had taken over her life. She

testified that the computers she used were simply too slow and that SESIS took too much

49

time to complete. She testified about several e-mails she received from members that

stood out. This following one is illustrative to the Arbitrator because Ms.

Karten-Bornemann said it "resonated" with her "because she feels the same way I feel. I

can't keep up with the system and neither could she."

I am a speech provider at... and I am writing in reference to this new program. Although this program was created for good reasons, it takes too much time to document everything. I am taking my work home and staying up late just to make sure I encounter attendance, input my session notes, write ieps, etc., for all of my students. I am staying after work until 430-5 at times as well. I am unable to do my work during my preps and admins because I have limited access to a computer; hence having to stay after work/take work home in order to make sure my paperwork is up to date... There is not enough time during the day to input everything into the program and I should not be taking home and/or staying after work, especially being this is on my own time and without pay (Union Exhibit 21).

The UFT's case became more concrete and persuasive based on the presentation

and experiences from users in the field such as Ms. Karten-Bornemann and others. The

common theme of each witness was similar. Most of them had problems with bandwidth

in their schools. In other words, they testified that during the peak hours of the school day

when they actually had no students and an opportunity to try to complete their SESIS

work, the computers were working so slowly that they could not complete the work in a

timely manner. Several witnesses spoke of a common pattern, namely, that after each

click for encounter attendance to complete one of 13 to 17 steps for each student each

day, a circle would appear. This circle is similar to what many of us using computers on

the Internet have seen when we are trying to purchase something. The user must wait

until the circle is gone and cannot proceed to the next step until the circle is gone. The

witnesses repeatedly said that the circles would just be there between each step because

the system was slow.

50

The Arbitrator is convinced that in many schools this was the most severe

problem. Virtually all of the UFT's direct witnesses spoke about this problem and some

of the Department's witnesses conceded that this was a problem. With between 13 and 17

clicks to complete encounter attendance, one can only imagine how troublesome and

frustrating this problem became for unit members. Ultimately, this required many of them

to complete their work at home where they had better bandwidth and a system that was

not strained.

Assistant Principal DiVittorio testified that at his school, which had an ample

amount of computers, teachers were regularly complaining about SESIS because the

computers were too slow. He testified that it was requiring many of them to work during

their lunch period and before and after the school day. He was also aware that several

staff members in his building had spent upwards of 45 minutes waiting to speak to the

SESIS help desk when they had questions.

Senior Physical Therapist Naomi Engelman testified that she was sharing a

computer with 6 other people and that the sheer volume of encounter attendance and the

IEP functions was taking her approximately 90 minutes per day to complete and taking

her well beyond the workday. She also testified about slow bandwidth problems delaying

her from completing her work. She testified that about why the old system was preferable

to SESIS from her vantage point. "It was a lot faster to write because the computer is old

and the bandwidth is slow- it was circle, circle, circle." She described specific instances

when faxing IEP information into SESIS was inordinately delayed and prevented her

from completing her encounter attendance work during the day.

51

Speech/Language Pathologist Blake Rose conceded that the computers at her

school were excellent as was the bandwidth. However, she expressed concerns about

inordinate time delays due to the faxing component of SESIS, as well as waiting on hold to

speak to someone at the help desk.

Paraprofessional Linda Buis also testified as to experiencing regular delays in

completing her encounter attendance. She testified that at some times during the day the

system is very slow and that she often completed her SESIS work at home.

The point is that each and every witness presented by the Union who used SESIS

testified that he or she could not complete his or her SESIS tasks during the workday.

Their testimony was clear, consistent and credible. Some said the problem was

bandwidth. Some said the problem was limited access to computers. Some said the

problem was sheer volume of students and the time consuming aspects of 13 to 17 clicks

for each student each day. Some said the problem was waiting inordinate amounts of time

to wait to speak to someone at the help desk. And some said it was delays in their day

attributable to the faxing requirement for BEEP work on SESIS. The totality of it was

persuasive.

Most importantly, much of the UFT's testimonial and documentary evidence was

supported by real data that shows that approximately 30% of SESIS users were logged in

at times outside of the workday during several months in the 2011-2012 school year.

Notably, the Department presented data that analyzed work on SESIS both between the

hours of 7am to 6pm and Sam to 4pm. This data shows that in most months in the

2011-2012 school year, more than 20% of SESIS users were logged in to SESIS outside of

the hours of 8am to 4pm. It cannot go unnoticed by the Arbitrator that this statistic is

skewed

52

in favor of the Department in a material way. The fact is that the work hours for unit

members is roughly 7 hours per day. Moreover, the Department's statistics counted

weekends when employees were working between 8am and 4pm as work time when this

is not work time. It should be noted that there were a significant amount of members

working during this time. Finally, none of the statistics accounts for time that unit

members worked on SESIS during lunch and the statistics do not address wait times at

the help desk or time spent faxing, some of which clearly occurred outside of regular

work hours.

The Arbitrator makes mention of this because even based on the Department's

flawed statistics, thousands of members were working on SESIS outside their workday.

Moreover, the Union analyzed the same data using the more accurate times of 8am to

3pm and only addressing school days. When the data was analyzed in this fashion, which

is a much more accurate depiction of reality, it shows that in most months during the

2011-2012 school year, approximately one-third of SESIS users were logged in to SESIS

outside of their workday. Again this does not include time teachers spent working during

their lunch period, which the Arbitrator cannot account for but which was presented

anecdotally by several witnesses. This statistic also does not account for time spent

waiting to speak to someone on the help desk or time spent faxing. However, one

important aspect of the data that significantly favors the Department insofar as remedy is

concerned is the fact that the number of employees on SESIS outside the workday

trended downward during the school year and this downward trend will be addressed by

the Arbitrator when he addresses the Department's case and remedy.

53

And finally there are the surveys. While the Department has certainly raised some

compelling arguments that cause the Arbitrator to give the surveys limited weight, they

must be given some credence because the information in the surveys is consistent with

the other evidence in the record. Complaints are evident from scores of surveys regarding

wait time at the help desk, problems with bandwidth, and a feeling that there was not

enough training, etc.

In summary, when the Arbitrator considers the testimony and evidence presented

by the UFT leaders, the testimony of SESIS users and the data showing that roughly

one-third of SESIS users worked on SESIS outside the workday in most of the months in

the 2011-2012 school year, the only logical conclusion to draw is that the workday

provisions of the CBA were violated.

The Arbitrator will next explain why the Department's witnesses and evidence

did not dissuade him from finding a violation of Article 6A. First and foremost, the

Department's data shows that thousands of staff each day were working on SESIS outside

the regular workday. In addition, while several of the Department's witnesses testified

that SESIS problems were not nearly as bad as portrayed by the Union's witnesses, and

some of it was persuasive and influential to the Arbitrator insofar as remedy is concerned,

many of the Department's witnesses conceded that they were aware of a combination of

problems regarding SESIS, whether they be wait times for the help desk, slowness of

computers due to bandwidth problems or equipment issues. Indeed, the Department

acknowledged it had bandwidth problems in nearly 400 of its schools. The Arbitrator

applauds the Department for taking action and trying to remedy the situation3.

3 The Arbitrator cannot determine how much the Department's solution regarding bandwidth remedied the situation in the schools where additional support was provided because that information was not presented.

54

However, for purposes of this decision, the fact remains that remedies were not provided

in any of the identified schools until the end of the 2011-2012 school year. Hence, there

is no real doubt that there were bandwidth issues in a sizable number of the Department's

schools.

Similarly, many of the Department witnesses acknowledged that wait times for

the SESIS help desk and problems with faxing were well known. The wait time issue is

particularly noteworthy to the Arbitrator because the Department presented very limited

evidence about wait times. In fact, the only evidence the Department presented was about

wait times for a week prior to the first week of the 2011-2012 school year and the wait

times in the first week of the 2011-2012 school year. This Arbitrator almost never draws

negative inferences in cases. However, in this particular circumstance the evidence

presented by the Department on wait times was so scant and at such an irrelevant time of

the year when school had just begun and only a couple of student attendance days had

even occurred, that it is logical to draw some negative inference about the Department's

failure to present any data about wait times to speak to someone at the help desk. After

all, this data was accessible and none of it was presented.

It also must be noted that virtually none of the Department's witnesses were users

of SESIS. Most of them were policy makers or supervisors who testified about the need

for SESIS, the training the Department provided to get employees ready to use SESIS,

and the remedies the Department offered when it became aware of a problem with

SESIS. Their testimony overall did not refute the other evidence that SESIS users were

working beyond the day because they could not complete their work due to a variety of

problems.

55

The Department witnesses who were policy makers such as Laura Rodriguez and

Shona Gibson explained in a very clear way just how important it was for the Department

to implement SESIS for the improvement of the delivery of special education services and

to have data-driven data more readily accessible. They and other Department witnesses

explained in a credible way why SESIS was implemented. They also explained some of the

virtues of the system. They and other Department witnesses explained the training plans

that were implemented to get SESIS up and running. This testimony was relevant and

helpful to the Department insofar as the Article 20 claim is concerned and remedy is

concerned, but it did not undermine the Union's arguments regarding the violation of the

workday provisions.

The Department presented other testimony from witnesses to show that the

problems with SESIS were not nearly as far reaching as presented by some of the Union's

witnesses. Department witnesses did present as being responsive when problems with

SESIS emerged. An example of this occurred in the fall of 2011 when SESIS required

employees to take attendance on some holidays. Once this issue was raised with the

Department, the issue was rectified. Although this does not change the fact that there was

a contract violation of Article 6A, this does impact remedy. Similar testimony was

presented regarding improvements in the availability of computers as well as anecdotal

testimony that employees' time on SESIS was getting shorter as employees became more

familiar with the system.

The Arbitrator considers much of this testimony to be persuasive. It influences the

Arbitrator's ruling on remedy by leading him to award a remedy based on the data itself.

It is the most accurate way to account for the extra work. It will lead to educators

56

receiving a greater remedy for the time period when encounter attendance was first

implemented and less of a remedy for the time period after some improvements to SESIS

were made by the Department that allowed employees to become more efficient in using

SESIS. This conclusion is supported by the data. For example, the UFT's data shows that

by May 2012, roughly 25% of SESIS users were logged in to SESIS outside the workday.

In June 2012, this number went down to 23%, a 10% reduction compared to almost every

other month in the 2011-2012 school year. Other examples of the value of the

Department's presentation include some of the data analysis it presented from some of

the UFT members who testified. This shows that several of the witnesses worked on

SESIS outside the workday far less than their testimony reflected. While they did work

outside the workday and there must be a contractual violation and remedy for such work,

this data and testimony presented by the Department again influences the Arbitrator

positively from the Department's viewpoint insofar as remedy is concerned.

There is one other issue the Arbitrator will address regarding Article 6A. The

Department's claim that employees should not be paid because they were never expressly

directed to work is not persuasive. This defense is often a winning defense as employees

in many contexts cannot self-authorize overtime. This defense is not persuasive in this

case because the Department clearly wanted this work to be completed. This is work that

is of the utmost importance, which is why SESIS was implemented. In September 2011,

the Department was keenly aware that scores of teachers were working beyond the

workday. The Department never told these employees to stop working beyond the

workday. The Department could not do this because the work had to be done. This fact,

coupled with other evidence in the record, very clearly suggesting to employees that one

57

of the values of SESIS was that it could be accessed from anywhere at any time, shows

that the Department knew what was happening. It allowed the work to be done outside

the day because the work had to be done.

The Arbitrator will now address the Union's claim that the Department violated

Article 20 of the CBA by implementing SESIS without negotiations. The Arbitrator

dismisses this claim because the Arbitrator finds that it is the Department's management

prerogative to determine how it wishes to deliver services. The Department decided to

implement SESIS to improve its delivery, management and analysis of special education

services. The Department saw a need for improvement and it chose SESIS as the tool.

The Department did not have to negotiate over whether it could implement SESIS. It

should be noted that many of the functions required in SESIS are not substantively

different than the former system. For the most part, it simply captures everything on an

Internet-based system so there is better and quicker access to information.

Since SESIS is really a tool that reflects on how the Department delivers its

special education services to its constituents, it is more akin to the implementation of

something that is a non-mandatory subject of bargaining as that term is understood under

the Taylor Law of New York State. Article 20 is not violated because it requires the

Department to collectively bargain prior to implementation on "proper subjects for

collective bargaining." While the term proper is not exactly mandatory, the Arbitrator

finds this to be the most logical interpretation of Article 20. Hence, the Department did

not violate Article 20 by implementing SESIS prior to negotiating.

However, this does not mean that the Department is now not obliged to conduct

impact negotiations. Indeed, it is well understood that although decisions regarding non-

mandatory issues need not be initially bargained, that employers are, upon request,

required to bargain concerning the impact on employees affected by a decision related to a

non-mandatory subject of bargaining. In other words, since SESIS's implementation has

caused an adverse impact on the teacher workday, the Department is obligated to conduct

impact bargaining over this issue and the Arbitrator will be ordering it in the remedy as

he sees that as being contemplated by the parties' language in Article 20,

Finally is the issue of remedy. The Arbitrator is convinced that the remedy must

be based on the data showing when employees were working on SESIS beyond their

workday, i.e., either before or after the time of their workday or during non-workdays

(Saturdays, Sundays and holidays). Although the Department did not submit this specific

data into evidence, it became evident during the case that the Department maintains log

in and log out records that can track the exact amount of time each employee was in

SESIS. Since SESIS log in times beyond the workday can be tracked, this is the fairest

way to provide a remedy. It provides greater compensation to employees who spent the

greatest time working beyond their workday due to problems with SESIS. At the same

time, it will ensure that employees who have not worked beyond their contractual

workday will not be awarded with additional compensation that they are not entitled to.

This remedy is also the fairest way to resolve the issue of the extra work

performed by teachers due to the implementation of SESIS because it is based on

objective evidence. The Department was able to show that some of the UFT's witnesses

testified that the time they spent on SESIS was greater than what the objective login data

actually showed. Thus, while it would be neater and tidier for the Arbitrator to award

each employee extra pay by title, this would be based on subjective information that may

59

not conform with the data. In these challenging economic times, the Arbitrator is

convinced that any award should be reserved for only those employees who have truly

been harmed by working beyond their workday to complete their SESIS tasks.

The Arbitrator is not awarding a specific remedy for the Department's SESIS

problems with faxing or for the delays at the help desk as this is be impossible to

quantify. This does not mean that these issues do not have to be addressed by the

Department in its negotiations with the UFT regarding SESIS. Rather, it simply means

that the Arbitrator does not award remedies based on guesses and awarding a monetary

remedy for these issues would be nothing more than a guess as the data does not exist. In

other words, there is no practical way to actually quantify the amount of time each

specific individual spent waiting on the line for the SESIS help desk and whether it

required them to work beyond the workday. There is also no way to tell whether faxing

problems with the IEP function of SESIS required members to work outside the workday.

Equally important, the Arbitrator believes that delays attributable to faxing or

calls to the help desk ultimately required employees to work on SESIS beyond their

workday, which will be remedied. This is the case because if an employee spent a long

time on the telephone calling the help desk or waiting in line to send a fax, that employee

probably was unable to do all of their SESIS work during the workday. Thus, these

problems will be indirectly remedied.

The issue of employees working during their duty-free lunch is an even greater

concern to the Arbitrator. Employees should not be required to work on SESIS during

their duty-free lunch period and the Department should expressly inform employees that

they are not required to work during this time. However, the Arbitrator is not providing a

60

remedy for this because he is convinced that requiring the Department to examine every

SESIS user's time to determine whether they worked during their lunch period is unduly

burdensome and will result in endless argument and disagreement over some issues that

are nearly impossible to determine. While the Department surely could determine how

much time each user spent on SESIS in the middle of the workday, schedules vary from

day to day for many of the educators. They frequently take their lunch period at a

different time every day. Thus, it is nearly impossible to be sure whether or not people

worked on SESIS during their duty-free lunch period.

In lieu of a monetary remedy for these problems with SESIS, the Arbitrator

strongly feels that, going forward, the parties would be best served by spending their time

jointly analyzing and negotiating over what else needs to be done to improve the

efficiency for SESIS users. A long-term solution to SESIS must be mutually found so that

SESIS does not require employees to work beyond their workday or compensates them

for doing so, consistent with this Award.

The Arbitrator feels that limiting monetary relief to work done outside the

contractual workday and on days when school was/is not in session is the fairest relief. It

will reward only those employees who worked beyond the workday. From a remedy

standpoint, this is the most important issue in the case, along with the parties sitting down

at the negotiating table to address the impact that the implementation of SESIS has had

on the teachers' workday.

Finally, the Arbitrator agrees that the Union's suggestion to have the Arbitrator

assist them with their negotiations over SESIS and/or to retain ongoing jurisdiction over

SESIS for some period of time in the future is prudent. The parties spent an extensive

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amount of time and resources on this case and on educating the Arbitrator about SESIS. If

SESIS disputes arise in the near term that are related to this case, the issues should be able

to be disposed of by this Arbitrator in an efficient manner due to his knowledge of the

SESIS issues. However, the Arbitrator will not order his continued involvement in SESIS.

He is willing to remain involved only if the parties mutually agree to have the Arbitrator

work in this capacity.

Accordingly, and based on the foregoing, I find and make the following:

AWARD

1. The grievance is arbitrable.

2. The Department violated Article 6A of the teachers' CBA and

corresponding articles when it mandated the use of SESIS to perform

encounter attendance and other lEP-related tasks.

3. The Department did not violate Article 20 of the teachers' CBA and

corresponding articles of other contracts when it unilaterally implemented

SESIS without negotiating with the UFT.

4. The Department is directed to conduct impact negotiations with the UFT

over all relevant issues related to the implementation of SESIS.

5. For the months of September 2011 through December 2012, employees in

the titles of paraprofessional, hearing education teachers, vision education

teachers, ESL teachers, special education teachers, general education

teachers, guidance counselors, speech teachers, occupational therapists,

physical therapists, psychologists and social workers4 shall receive

compensation at a pro rata rate for all time spent outside their regular

workday working on SESIS, i.e., time when they were logged in to SESIS.

All time spent by employees working on SESIS outside of their workday

4 The Arbitrator intends for the award to be available to all employees the UFT presented any kind of survey information on or other evidence about in this case.

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shall be added up and compiled for the Department to provide appropriate

pro rata compensation for each affected employee. The Department shall

provide the Union with the relevant data regarding remedy no later than

February 8, 2013 and payment shall be provided to the affected employees

no later than March 15, 2013.

6. The Arbitrator shall retain jurisdiction to address any and all questions

which may arise regarding the Department's implementation of the

remedy provided herein.

Dated: January 1, 2013 Cold Spring, New York

STATE OF NEW YORK) COUNTY OF PUTNAM)

I, Jay M. Siegel, do hereby affirm upon my oath as Arbitrator that I am the individual described herein and who executed this Instrument which is my Opinion and Award.

Dated: January 1, 2013

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