Najeeb N. Khoury, Arbitrator PO. Box 67 Montrose, CA 91021 213-304-5286 nkhouryadr@gmail.com IN THE FACTFINDING PROCEEDINGS PURSUANT TO THE EDUCATIONAL EMPLOYMENT RELATIONS ACT OAKLAND EDUCATION ASSOCIATION, Case No.: Union, FACTFINDING REPORT AND RECOMMENDATIONS FOR OAKLAND UNIFIED SCHOOL DISTRICT, SETTLEMENT Employer Chairperson: Naj eeb N. Khoury, Arbitrator Employer Panel Member: Roy A. Combs, agen Friedman Ful?ost, LLP Union Panel Member: Charles King, Advocate For the Union: Advocate For the Employer: Hearing Dates: Dennis Nelson, Bargaining Chair, Oakland Education Association1 John Gray, School Services of California, Inc.2 January31& February 1, 2019 1 While Mr. Nelson ?mctioned as the lead advocate, the Oakland Education Association?s bargaining team participated in the presentation. 2 While Mr. Gray functioned as the lead advocate, several of the District?s leaders participated. FACTFINDING REPORT AND RECOMMENDATIONS FOR SETTLEMENT - 1 BACKGROUND The Oakland Education Association (OEA or Union) represents non-management, non- supervisory certi?cated employees at the Oakland Uni?ed School District (OUSD, District, or Employer). There are approximately 3,000 employees in the unit. The previous collective bargaining agreement ran from July 1, 2014 to June 30, 2017. The parties made their initial proposals public on February 8, 2017, had their ?rst bargaining session on December 7, 2016, and held 30 bargaining sessions for a total of 200 hours of bargaining. On May 18, 2018, impasse was declared pursuant to Public Employee Relations Board (PERB) Regulation 32792(a), and OEA ?led a Request for Impasse Determination and Appointment of a Mediator on May 23, 2018. Per the Request for Impasse Determination, the parties reached agreement on ?ve articles, with eleven articles remaining open. After mediation failed to produce an agreement, PERB appointed Arbitrator Najeeb N. Khoury to chair a fact?nding panel. The fact?nding hearings occurred on January 31 and February 1, 2019 in Oakland, California. Both parties presented through their designated advocates and provided additional testimony and documents. ANALYTICAL FRAMEWORK Unlike interest arbitration, where a third?party neutral sets the terms of a new contract, a third-party neutral in an Educational Employment Relations Act (EERA) fact?nding simply provides recommendations. In essence, this makes fact?nding an extension of bargaining. Ultimately, the parties must persuade one another of their positions, and the neutral fact?nder simply provides an outside perspective to help the parties along. REPORT AND RECOWENDATIONS FOR SETTLEMENT 2 Neutral fact?nders have typically required the party seeking a change to the status quo to carry the burden of persuasion, and I will follow that convention. Further and as set forth in California Code Section 3548.2, EERA requires fact?nders to consider the following criteria: 1. 2. State and federal laws that are applicable to the Employer. Stipulation of the parties.3 The interest and welfare of the public and the ?nancial ability of the public schools. Comparison of the wages, hours, and conditions of employment of the employees involved in the fact?nding proceeding with the wages, hours, and conditions of employment of other employees performing similar services and with other employees generally in public school employment in comparable communities. The Consumer Price Index for goods and services, commonly known as the cost of living. The overall compensation presently received by the employees, including direct wage compensation, vacations, holidays, and other excused time, insurance and pensions, medical and hospitalization bene?ts, the continuity and stability of employment, and all other bene?ts received. Such other factors, not con?ned to those speci?ed in paragraphs 1 through 6, inclusive, which are normally and traditionally taken into consideration in making such ?ndings and recommendations. 3 The parties stipulated that the District is a public school employer under EERA, that OEA is a recognized employee organization under EERA, that the parties have met all the procedural EERA requirements for fact?nding, that I was appropriately assigned as the fact?nding chairperson, and that there are eleven outstanding articles. FACTFINDING REPORT AND RECOMMENDATIONS FOR SETTLEMENT - 3 will reference these speci?c criteria when discussing speci?c recommendations to which they apply. ISSUES AND RECOMMENDATIONS Before getting into the speci?c issues, I would like to make some general comments. First, all the parties to this fact?nding proceeding have dedicated their professional lives to public education in Oakland. Public education is a right and a quality public education is essential to an ethical society that values the dignity and uniqueness of each child. The importance of public education is magni?ed in communities that have historically lacked resources. This makes the administrators, teachers, librarians, nurses, counselors, and certi?cated staff of Oakland Uni?ed heroes of the community. California?s current educational funding system is complicated and ?awed in a number of ways. These ?aws make ?nding resolutions to this contract and other teacher contracts throughout the state very dif?cult. As a general matter, the parties should recognize these ?aws and work together to address these shortcomings. I will explain the shortcomings as I see them to encourage the parties to see that much of their ?ght lies at the state capitol and not with each other. California ranks in the bottom quartile nationally on base per pupil funding. It also provides funding on the basis of attendance as opposed to enrollment. This often negatively impacts urban school districts where truancy rates tend to be higher. Further, state spending on education plummeted with the Great Recession. The Brown administration gradually provided more funding per year until pro?recession ?mding levels were reached during his ?nal year in of?ce. Yet, as those funding levels increased, the state also required that school districts pay dramatically higher pension contributions for their employees. FACTFINDING REPORT AND RECOMMENDATIONS FOR SETTLEMENT - 4 the positive side, the Brown administration radically restructured the state?s funding formula, with the new formula providing more resources for students who are English learners, eligible for free and reduced-price meals, or foster youth. Each student who falls within at least one of these categories receives a 20% supplemental grant (however, a student who falls into multiple categories does not receive multiple levels of additional ?mding and is referred to as an unduplicated pupil). When a school district has more than 55% of its pepulation receiving supplemental ?nding, it also receives a concentration grant of 50%. However, charter schools have proliferated most in districts that receive concentration funding. Because funding is tied to attendance, districts with high charter density rates are losing funding at an alarming rate even when they are concentration grant districts. Put differently, as certain state policies have helped high?needs urban districts (returning spending levels to pro?recession levels, providing supplemental and concentration grants), other policies have undercut the ?nancial health of those districts (tying revenue to attendance, increasing pension contribution rates). As part of its presentation, OEA presented on the impact of charter schools on Oakland Uni?ed. I have no doubt that charter advocates and indeed charter policies are driven by a desire to increase options for disadvantaged children. Unfortunately, there are ways that the current system creates an unlevel playing ?eld for traditional public schools and undermines those districts serving the very same disadvantaged children that charter advocates seek to aid. Daily attendance revenue is apportioned to salaries, pensions, facilities costs, legal costs, administrative costs, etc. Some of these costs can shrink with declining enrollment. Other costs??namely legacy costs?do not shrink regardless of enrollment. Consequently, when attendance numbers shrink due to declining enrolhnent, the percentage of attendance generated FACTFINDING REPORT AND RECOMLIENDATIONS FOR SETTLEMENT 5 revenue going to legacy costs increases because there is a smaller population servicing these ?xed costs, meaning there is less per pupil money for instruction. Charter schools, however, receive the same level of attendance?level funding but do not inherit any legacy costs. This means that the funding level per child for instruction is higher at charter schools, thereby creating an uneven playing ?eld. Further, there is data suggesting that charter schools do not enroll a proportionate number of special education students. While this data is contested, OEA provided data showing that the percentage of special education population has grown. This is important from a ?nancial perspective because special education is underfunded. The federal and state governments mandate certain special education services, yet they do not provide nearly enough funding to meet all the mandates. This leads to the special education budget ?encroaching? on the general budget. In other words, a certain percentage of general student-based revenue is diverted to special education. If the percentage of special education students increases, then a greater percentage of per pupil spending on general student population education must get diverted into special education dollars. Ifindeed charters do not enroll a proportionate number of special education students, then they will have more general education dollars to provide instruction to their general education student body than traditional public schools. Again, this creates an uneven playing ?eld. Ultimately, the question should not be whether economically disadvantaged families should have educational choices?they clearly should. The question should be whether the state?s current funding system is suf?cient, fair to traditional public-school children and allows all schools funded with public dollars to compete on an equal playing ?eld. The parties should be able to work together to advocate for increased state spending on public education and for REPORT AND RECOMMENDATIONS FOR SETTLEMENT - 6 sensible reform that will ensure Oakland Uni?ed can compete on an equal playing ?eld. Such a joint project can help rebuild trust that has been tested during this negotiating cycle. Before tackling the speci?c issues raised in bargaining, I think it is important to explain how OEA and OUSD generally see the shared world they inhabit. general thesis is that its package of proposals, if adopted, would improve student success by addressing four key areas: teacher retention, smaller class sizes, lower caseloads for support providers (nurses, counselors), and environmental justice. Oakland Uni?ed agrees that there is a teacher retention crisis and wants to dedicate as many resources as possible to improving salaries. OEA acknowledges that the state should increase funding but emphasizes that OUSD actually receives higher revenues per pupil than most districts because of Oakland city parcel taxes and because OUSD is a concentration grant district. OEA claims that OUSD overspends on administrators and consultants, and that its economic proposals are feasible if OUSD more wisely spends its resources. While OUSD does not make an inability-to?pay argument, it points to the fact that the county of?ce of education and its state trustee must approve any deals it makes and that it is constrained ?nancially. It further argues that it has a deep structural de?cit and that any increases in labor costs will lead to cuts elsewhere. OEA counters that OUSD has a budget credibility problem. OEA points to surpluses in actual ?nancials. OEA believes that OUSD constantly overestimates expenses, which creates an appearance of a budget crisis only to lead invariably to actual surpluses. OUSD also argues that it is limited in how it spends money because the law requires it to use supplemental and concentration grants on the students who generate the additional revenue, REPORT AND RECOMMENDATIONS FOR SETTLEMENT - 7 implying that it cannot use the ?mds for across-the-board labor costs. OEA counters with a June 10, 2015 California Department of Education letter stating the following: ?For example, a district may be able to document in its LCAP4 that its salaries result in dif?culties in recruiting, hiring, or retaining staff which adversely affects the quality of the district?s educational program, particularly for unduplicated pupils, and that the salary increase will address these adverse impacts.? OUSD argues that, on a per student basis, it spends more on certi?cated non?management salaries and bene?ts than many other comparable districts. OEA responds that certi?cated bargaining unit salaries as a percentage of total budget spend are lower in Oakland Uni?ed than any other Alameda County school district, and that teachers? salaries are the lowest in Alameda County with the disparity in salaries only worsening with time. In other words, Oakland Uni?ed teachers with increasing tenure fall farther behind their peers in other districts. This has a particularly pronounced impact on the retirement formulas for long-tenured Oakland Uni?ed teachers. The data does not look any better when comparing Oakland Uni?ed to other urban districts in California. OUSD acknowledges that its non-supervisory certi?cated salaries are low, although it also emphasizes its generous health care package. OUSD recognizes the need to improve salaries to tackle its recruitment and retention problem. unduplicated pupil population in 2016?17 was 77.61%. It loses approximately 18.7% of teachers on a yearly basis. This is well above the state average. Also, the retention 4 LCAP stands for Local Control Accountability Formula. Each District must implement an LCAP with participation and input ?'om the community. FACTFINDING REPORT AND RECOMMENDATIONS FOR SETTLEMENT - 8 rate is even worse at some high-needs schools, with West Oakland Middle School retaining only 9.1% of its teachers over a nine?year period. With this complicated picture in place, I now turn to my recommendations on the outstanding issues. Article I?Agl?eement 3. Term of the Agreement: Issue: Both parties have proposed a three-year term for the contract, running from July 1, 2017 to June 30, 2020. The District has also suggested that it might be able to provide more guaranteed salary increases if the parties close out the 2017-18 school year and have the term of the agreement run from July 1, 2018 to June 30, 2021. Recommendation: I will recommend a contract term of July 1, 2017 to June 30, 2020. I do so because both parties have of?cially proposed a three-year term. However, I encourage the parties to explore the possibility of a July 1, 2018 to June 30, 2021 term should that enable the parties to reach resolution on the compensation article by allowing for more guaranteed salary increases. Article 3?Defmitions Issue: OEA seeks to de?ne what work should fall under the Daily Hourly Rate. It proposes adding the following language to the de?nition article: ?This [hourly] rate shall apply to additional work including but not limited to mentoring emergency credentialed teachers, extra duty, extended day, prep substitution and all other activities for additional compensation referenced throughout this agreement.? OEA also proposes de?ning the actual rate by tying it to the salary schedule with the following formula: taking column 4, step 6 and dividing it by 6. FACTFINDING REPORT AND RECOWENDATIONS FOR SETTLEMENT - 9 Recommendation: The parties have been bargaining an adjustment to the actual daily rate in Article 10?Hours of Work. I will provide my recommendation on the appropriate daily rate in that section and therefore do not recommend adopting the portion of proposed de?nition that ties the daily rate to a step and column rate. OEA, however, persuasively argues that administrators have applied different types of rates, including per diem rates, to work that falls within its proposed de?nition of the type of work to which the daily rate should apply. The District provided no strong counter to why the work identi?ed in the proposed de?nition should be paid using a different rate. I recommend adopting language regarding the type of work to which the hourly rate should apply. Article 6?Association Rights Issue: The outstanding issue5 is proposal to add the following language: ?Elected Site Representatives duties shall be counted for three (3) hours of professional activities and duties per month as per Article 10.2.8.? Article 10.2.8 provides that unit members ?shall participate in professional activities and perform professional duties beyond their regular work day as assigned by the appropriate administrator to a maximum of ?ve hours per calendar month for the work year.? During the fact?nding hearing, it became evident that there was confusion over the intent of the proposal. At the hearing, OEA made clear it was not asking site representatives to be excused from professional development or parent-teacher interactions. The District seemed open to the idea of 5 There were also issues involving OEA email access and new employee orientation. However, February 12, 2018 proposal appears to give OEA the email access it is seeking (I note that there is recent PERB caselaw on union email access), and the parties have apparently agreed on new employee orientation language consistent with legislation mandating such access. FACTFINDING REPORT AND RECOMMENDATIONS FOR SETTLEMENT - 10 having some site representative work count towards extra duty time. Indeed, the contract currently reads: ?In making additional duty assignments, the Site Administrator shall take into consideration the fact that a unit member has been elected or appointed as an Association Representative and will make every attempt to reduce extra duty responsibilities.? Article 6.1.7. The District was hesitant to have three-?fths of such extra duty time be taken up by site representative duties. Recommendation: Because the contract already provides that administrators should make every attempt to reduce extra duty responsibilities from site representatives, I do not believe it is a radical departure from the status quo to have some site representative time count as extra duty time. However, I also agree with the District that having the majority of extra duty time be counted is an initial step too far. Consequently, I recommend that one and half hours of site representative time count toward extra duty time. This should not displace professional development time or parent-teacher engagement time. Article lG?Hours of Work The parties focused their presentations on three outstanding issues6 in the Hours of Work article: 1) the appropriate hourly rate; 2) the District proposal to remove language restricting the school day to the hours of 8:00 am to 3:45 pm; and 3) the District proposal to allow the 30- minute daily preparation period for elementary school teachers to happen at the beginning or end of the work day. 5 There were other proposals in this Article but I recommend the status quo on those issues as the parties did not focus on them in their presentations. FACTFINDING REPORT AND RECOMMENDATIONS FOR SETTLEMENT - 11 The Appropriate Hourly Rate Issue: The current contract language has varying hourly rates that apply to different types of assignments?"with the current rates ranging from $15.96 to $37.69. However, the speci?c Extra Duty Hourly Rate is currently $25.82. These rates have not changed since 2006. OEA proposes raising the Extra Duty Hourly Rate to $50, making it the uniform rate for extra duty assignments, and ensuring future increases to the rate by linking it to the salary schedule. OUSD proposes raising the Extra Duty Hourly Rate to $35 and making it the uniform rate for extra duty assignments. Recommendation: The parties agree that the Extra Duty Hourly Rate should increase. OUSD has made an offer that signi?cantly improves the current Extra Duty Hourly Rate and that eliminates the disparity in rates for different activities. However, its offer of $35 does undercut one current rate of $37.69. It provided no compelling reason why it did so. I recommend using the $37.69 rate as the new Extra Duty Hourly Rate so that no future work is paid at a lower level than the level at which it is currently paid. The $37.69 rate also ensures that most extra duty work will be paid at a signi?cantly higher level than is currently the case. Also, I recommend the adoption of language that provides the $37.69 will be increased by the same percentage as ?lture across-the?board salary increases. This language regarding increases to the rate should only apply a?er any across-the-board salary increases for this round of bargaining are implemented. Such language will ensure that the Extra Duty Hourly Rate does not remain unchanged for another thirteen years. b) The District?s Proposal to Remove the 8:00 am to 3:45 pm school day parameters Issue: OUSD desires to create standardized bell times and calendars that would have FACTFINDING REPORT AND RECOMMENDATIONS FOR SETTLEMENT 12 staggered start and end times, with start times as early as 7:45 am and end times as late as 4:30 pm. In adopting these standardized, staggered times, the District can reduce its needed daily bus routes by twenty-?ve routes. OUSD contracts out its transportation services, and the reduction in routes will have a cost savings of approximately $2.5 million. For reference, a one percent salary increase for OEA bargaining unit members costs approximately $1.9 million. OUSD acknowledges that by adopting uniform, staggered schedules there will be less school site control over start times, and the earlier or later start times will impact families. main objection is that OUSD decided on this plan without input ?om the or labor. OEA understandably does not want uniform schedules dictated to its membership or the community but is open to having a discussion on how best to implement a plan that will generate substantial savings. Recommendation: Irecornmend that the current language remain in place for the 2019- 2020 year but with a sunset provision making clear the language will not remain for 2020-2021. This will enable the parties to have a full academic year to discuss how best to implement the new schedules with input from the community and labor. Further, the $2.5 million savings should be reinvested into the goal of improving recruitment and retention. 0) Allowing a Daily Thirty?Minute Preparation Period for Elementary Teachers At Either The Beginning or End of The Work Day Issue: This issue is directly tied to the previous one. If there is greater variance in the start and end time for elementary teachers, then it makes sense to have preparation time at either the beginning or end of the date. Recommendation: [recommend that the language remain status quo for the 2019-2020 school year with the understanding that the new language will go into effect in 2020?2021 with the sunsetting of the language regarding the school day parameters. FACTFINDING REPORT AND RECOMMENDATIONS FOR SETTLEMENT - l3 Article 12-wTransfers and Assignments Issue: The one outstanding issue under this Article is proposal that each school with an 80% or higher population of unduplicated pupils receive an addition full-time equivalent employee per 500 students- OUSD states that this proposal is too costly. Recommendation: I recommend the status quo. The reason is that I will be recommending improved caseload numbers, class size caps, and salary increases. I think spending in those areas makes more sense than adopting a proposal that does not clearly tie additional spending to class size reduction, caseload improvements or salary increases. Article 13 25?Evaluations And Peer Assistance and Review Issue: The parties have spent four years piloting the Teacher Growth and Development System (TGDS) as a new evaluation system in the District. OUSD now proposes eliminating the California Standards for Teaching Profession (CSTP) evaluation system from the contract and replacing it with the TGDS. OEA does not object in theory to moving to the however, as part of the pilot system, TGDS came with safeguards, such as the ability to have alternate evaluators. OUSD is eliminating those safeguards because the money to support those safeguards came from expiring grants. OEA wants to add language in Article 25 that limits the District?s use of intermittent peer review reports to after the acceptance of the ?nal peer review report. The District does not object to this addition but wants it to be part of an agreement with Article 13. Recommendation: There is agreement between the parties that, with the right support and ?nancial investment, 3 move away from the CSTP and towards TGDS or a TGDS similar model makes sense. However, without a guarantee that the TGDS implementation will mirror the protocols of the pilot, I will not recommend changing the status quo. With that said, I FACTFINDING REPORT AND RECOMMENDATIONS FOR SETTLEMENT - l4 recommend that the parties continue to work on language that incorporates changes that the Oakland community has embraced with regards to updating teacher evaluations. I also recommend that the parties accept the proposed change on the use of intermittent peer review as there does not appear to be a philosophical difference about this. Article 15??-Class Size Issue: OEA has an ambitious proposal to reduce class sizes. It proposes reducing class size caps at all schools by two students over a two-year period?with class sizes being reduced by one each year. OEA proposes doubling the reduction at schools with a population of 80% or higher of unduplicated pupils?"meaning class sizes would be reduced by four over two years at these schools. OEA also proposes adding language requiring OUSD to pay overages when class size numbers exceed the caps. OEA points out that there is presently no monetary disincentive preventing OUSD from exceeding the contractual caps. OEA asks for a $25 daily per?pupil overage for elementary classes and an 58 per-pupil, per-period overage for secondary classes. OEA has other class size proposals but focused its presentation on these issues. OUSD proposes raising some special education caps, reducing PE class sizes and ?ne arts classes, and reducing ?lth/5th grade class size caps in elementary schools with populations of 97% or higher of unduplicated pupils. OEA argues that large class sizes along with low salaries are central reasons for the retention crisis. It also argues that lowering class sizes is one of the most effective ways to improve student achievement. OUSD responds that its class size averages are comparatively good. It has a district wide average of 24.27, a average of 23.36, a 4-6 average of 25.85, a 7- 8 average of 24.27 and a 9-12 average of 24.02. This compares to a composite comparative group average of 26.42, a average of 23.25, a 4?6 average of 28.33, a 7-8 average of 28.70, FACTFINDING REPORT AND RECONIMENDATIONS FOR SETTLEMENT - 15 9-12 average of 25.69. OUSD also asserts that its classroom teacher ratio of 16.66:] is the second lowest on its list of comparable districts. OUSD prices class size reduction proposal at $36.2 million, $18.2 million for added personnel and $18 million to add enough additional space in the form of leased portable classrooms. Recommendation: I agree that lower class sizes will improve teacher retention and educational outcomes. The question is what is a feasible recommendation recognizing the need to enhance salaries in the District and that lowering class sizes can be an expensive proposition. In looking at the actual class size caps in the-contract, they are much higher than the District averages31; 7?12 is 32 for English, World Language, Mathematics, Social Science Non-Lab Science with varying class sizes for other areas. This shows that averages can be deceiving and that caps are important. However, it also means that the District should be able to mitigate the cost of lowering caps if it can better balance its current classes. I am also cognizant of the fact that we are in February 2019 and across?the?board reductions starting in July 2019 will be a challenge. Consequently, I recommend an across?the?board class size reduction of one (1) to be fully implemented by July 2020, with 20% of schools having an implementation date of July 2019. The intent is for implementation to happen ?rst at the highest-needs schools. I also recommend that the parties form a joint class size reduction taskforce. This taskforce will be charged with looking at ways to ?nd further class size reductions to be implemented by July 2021. On the question of overages, I agree that a ?nancial disincentive needs to be in place. However, given that this will be a new addition to the contract, I believe that smaller overages FACTFINDING REPORT AND RECOWENDATIONS FOR SETTLEMENT - l6 should be implemented at this time. I recommend a $9 daily per-pupil overage for elementary classes and a $2 per?pupil, per-period overage for secondary classes. The District raised a good point regarding unintended consequences of class size reduction. There are certain classes and programs that are highly valued with long wait lists. Decreasing class sizes for these classes and programs can deny students the bene?ts of these programs. I encourage the parties to negotiate a way to identify these classes and programs and to negotiate a carve?out so that these valuable seats are not closed. The District provided no compelling reason for me to recommend changing the status quo on the special education numbers, although it did point out that its special education numbers are lower than at most districts. 1 am recommending the status quo but acknowledge that raising these numbers can have cost savings that can be applied elsewhere. Article 17?Safety Issue: The parties are essentially in agreement on this article. The parties af?rm status as a sanctuary district, emphasize the preference of restorative justice over punitive practices, and wish to maintain a safety committee. The main issues of dispute are how explicit to be about status as a sanctuary district and whether there should be a change in the composition of the safety committee. Recommendation: Instead of reciting the sanctuary district policy verbatim in the contract, the parties should explicitly reference the policy. This will maintain ability to change the policy if it is forced to do so by outside forces. It will also provide DEA members the protection of knowing that they will not be disciplined for following the policy as long as the policy is in effect. FACTFINDING REPORT AND RECOWENDATIONS FOR SETTLEMENT - 17 for the safety committee composition, it is currently composed of one-half management appointees and one-half union appointees. OEA proposes making the composition one-third management, one-third union, and one-third community-based members. This makes sense as these issues impact the whole school community. OUSD provided no good rationale for rejecting this proposal. I recommend adopting proposal regarding the committee?s composition. Article 21?mSpecialized Caseloads Issue: OEA proposes reducing caseloads for counselors, nurses, speech therapists, and resource specialists. It also proposes increased support for ?newcomers,? de?ned as students who have recently arrived to the United States. OUSD proposes a modest reduction in counselor caseloads. Recommendation: The contractual counselor ratios are currently set at 1:600 and are allowed to increase to 1:700 when there is a reduction in workforce. OEA proposes reducing these numbers to 1:250 and 1:300. OUSD acknowledges that its staf?ng can support reducing the contractual caseloads numbers. Consistent with this reality, I recommend reducing the contractual number to 1:500 with that number being allowed to increase to 1:550 when there is a reduction in workforce. The current caseload for nurses is 1:1350. OEA proposes reducing this to 1:750. However, even at the current contractual caseload numbers, there are twelve open positions. The parties acknowledge that it is very dif?cult to recruit nurses. It makes little sense to lower the caseload number if OUSD cannot hire nurses to reduce the numbers. Rather, the parties should focus on reducing the current vacancies. They can do this by agreeing to recruitment and FACTFINDING REPORT AND RECONIMENDATIONS FOR SETTLEMENT - 18 retention bonuses. I recommend that the District offer a signing/retention bonus of $5,000, and a further retention bonuses of $2,500 to be paid after each two years of service. OEA proposes reducing the caseload to 1:700. This will require hiring two to three additional and will place OUSD in line with the National Association of School standards. OUSD proposes the status quo. Given the increasing importance of school especially as schools move toward community?based models, this seems like a reasonable and modest investment. I recommend the following language: shall open three more positions, and the parties shall work together to recruit quali?ed candidates. If the vacancies are ?lled, then the caseloads for shall be 1:700.? OEA proposes creating a caseload cap of 1:40 for Speech and Language Pathologist Specialists (SLPs). The Education Code dictates that there should be a 1:55 average for SLPs. OEA did not provide compelling reasons why the contractual cap should be 15 less than the state?mandated average. The District proposes incorporating the Education Code averages into the contract; however, as demonstrated in the caseload article, averages can be deceiving and do not always guarantee appropriate ratios per employee. I recommend using the state average of 1:55 as a cap. The District is already legally required to be staffed at this level and potential additional costs can be offset by rebalancing caseloads. The District raised the concern that there is a shortage of SLPs and it currently has multiple vacancies. Nevertheless, it cannot avoid the state-mandated averages. I encourage the parties to discuss ways to incentivize the hiring of new SLPs, whether through hiring bonuses or hiring them at higher salary schedule steps. OEA proposes that Resource Specialists have a 1:24 caseload maximum. The Education Code dictates a 1:28 ratio. OUSD is currently staffed at approximately a 1:26 ratio. I FACTFINDING REPORT AND RECOMMENDATIONS FOR SETTLEMENT - 19 recommend that the parties agree to a 1:27 ratio. This will show that the District is trying to improve on the state mandate and should not come at a considerable cost to the District considering its current staf?ng levels. OEA proposes adding support services for teachers who teach newcomers?that is, recent immigrants. The number of newcomers attending OUSD schools has increased dramatically in recent years, and OEA gave a compelling presentation on the challenges of teaching students from various countries and cultures who come to the classroom with various educational backgrounds. The newcomer proposal includes lowering class sizes, providing additional support services, and providing additional materials for these students. While I am extremely sympathetic to these demands, 1 do not have enough information to make an informed decision on the appropriate level and extent of additional staff and services needed for newcomers. I recommend that the parties create a taskforce to study the issue and provide recommendations for possible implementation in 2020-2021. Article 24?Comnensation Issue: The parties agree that OUSD salaries for this unit are low. The main dispute is over how much the District can afford. The District is offering a 1% raise for 17-18 that would be effective June 30, 2018, a 1% raise that would be effective July 1, 2018, a 1.5% raise that would be effective January 1, 2020, and a 1.5% raise that would be effective June 30, 2020. This equals a 5% raise over three years but with the raises happening in the middle or later part of the academic years except for the July 1, 2018 raise of OEA is seeking a 3% raise in 2017- 2018, a 4% raise in 2018?19, and a 5% raise in 2019?20, totaling 12% during the life of the contract. FACTFINDING REPORT AND RECOMMENDATIONS FOR SETTLEMENT - 20 There are also proposals on increasing substitute pay with both parties recognizing the need to recruit and retain high quality substitutes. There is presently a three-tier system for substitutes, with short-term substitutes receiving $139 a day, long-term substitutes (de?ned as assignments between 30-59 days) receiving $163 a day, and extended substitutes (de?ned as assignments of 60 days and over) receiving $179 a day. OEA proposes increasing the short?term substitute rate to $187 and maintaining the three steps with the same percentage increases between the different rates. OUSD wants to simplify its system by moving to a two-rate system. It proposes a $150 rate for days 1-89 and a $187 rate for days 90 and above. If proposal were adopted, a substitute would make more per day between days 1 to 29 but less per day between days 30 and 89 than is currently the case. OUSD also proposes extending the number of days a substitute must work in an assignment to have his/her higher rate carry over into the next year. Recommendations: The EERA statutory criteria require a comparison to comparable districts, 3 look at total compensation and a study of the CPI. The parties used different comparable districts in their analyses. OEA focused on other Alameda County districts and other urban districts. OUSD looked at other Alameda County districts and some districts in neighboring counties. The data basically reveals the same story. OUSD non-management, non? supervisory employees receive less salary than most of the other districts in the comparable groups. Further, the phenomenon gets worse with time. Even when total compensation is accounted for, OUSD non-management, non-supervisory employees fair poorly. There is no doubt that this contributes to the retention crisis in OUSD. For instance, OUSD employees at step one receive the second lowest pay among the twenty comparable districts chosen by FACTFINDING REPORT AND RECOMMENDATIONS FOR SETTLEMENT - 21 the District, and are the fourth lowest when looking at total compensation. By the time they get to step 10, they are the lowest paid and the third lowest in overall compensation. When it comes to CPI, OEA points to a report showing that CPI for the Bay Area was at 4.5% for the 12 months ending December 2018. OUSD looks at state CPI numbers that ranged between 1.5% and 3.4% from 2013-2018. However, those CPI numbers increased every year and ended at 3.4% for 2017-18. In looking at the CPI-for the Bay Area for the previous 5 Decembers before December 2018, we see a 2.6% annual increase in December 2013, a 2.7% annual increase in December 2014, a 3.2% annual increase in December 2015, a 3.5% annual increase in December 2016, and a 2.9% annual increase in December 2017. It is clear that proposal of a 5% raise over three years will not keep pace with in?ation. It is also clear that OUSD will have a very dif?cult time affording a 12% raise over three years, as it is in a structural de?cit. If OUSD were ?nancially healthier, I would recommend guaranteed yearly 3% raise for 17?18, 18-19, and 19-20 for a cumulative 9% raise over the life of the agreement. This would help OUSD wages in this unit become more competitive with other districts. However, lam cognizant that such a recommendation might place too much of a strain on the District?s current ?nances. Therefore, I am recommending a 3% raise for 17?18, a 3% raise for 18- 19 and an economic reopener for 19-20. Early indications from Governor Newsom?s administration suggest possible increases in funding. Also, the reopener will give the parties time to work collaboratively on ?nding funding solutions (whether by reallocating current spending and/or by seeking additional revenues) for further raises. OUSD did indicate during the hearing process that it might be able to offer more than a guaranteed 6% if the raises become effective later in time. There is, of course, a time value to money and OEA might not ?nd such an outcome acceptable. But this recommendation is not FACTFINDING REPORT AND RECOMMENDATIONS FOR SETTLEMENT 22 meant to foreclose discussions about other salary proposals that might work for the parties, including the possibility of having the contract?s term run from July 1, 2018 to June 30, 2021. On substitutes, I recommend accepting the District?s proposal to reduce the three tiers to two tiers but in order to do so, the new lower tier must be at a rate higher than the previous second tier?s rate. This will ensure that no substitutes are worse off under the new system. Therefore, I recommend a combined short and long-term rate of $1 80 a day for all assignments up to sixty day and an extended rate of $195 a day for assignments of sixty days or more. I make this recommendation because the parties have acknowledged the need and importance of recruiting and retaining substitute teachers. OUSD provided no compelling evidence to justify extending the number of days a substitute must work in an assignment to have his/her higher rate carry over into the next year. I recommend the status quo on this issue, the length of time needed to secure a carry?over rate should remain the same. CONCLUSION I discussed the issues that the parties focused on at the hearing. I recommend that the status quo remain for any issues on which the parties did not orally present and on which I did not comment. I sincerely hope that these recommendations assist the parties in reach' negotiated settlement. Date: February 15, 2019 ?Najeeb N. Khoury, Arbitrator FACTFINDING REPORT AND RECOMMENDATIONS FOR SETTLEMENT - 23 Concurring and Dissenting report of Panel Member Charles King Case No: February 14, 2019 Pursuant to California Government Code 3548.2 As Panel Chair Khoury points out, this case is complicated by outside forces namely an inadequate state support system, an unlevel playing ?eld with charter schools, and the involvement of both the Alameda County Office of Education, and a state Trustee. I appreciate the Chair?s experience and expertise and very much appreciate his commitment to assist the parties in reaching an agreement. I will detail exactly where I concur and dissent below, and i will also provide context for the dif?culties the district faces that are not driven by outside forces but are of its own making. I also note that the parties should also seek to af?rm the value of newcomer students, particularly in a district that prides itself on being a Sanctuary District. These are students who with adequate support can strengthen the district with their diverse world views and experiences. I have explored the district ?nancial projections through its budgets and found them to be less than credible. I have also investigated the district?s treatment of charter school expansion while simultaneously closing its own schools and found their behavior to be inconsistent with the best interests of the community and the students the district is charged with serving. I therefore concur in part and dissent in part as follows: 1- Article 3 Definitions I concur with adopting language regarding the type of work to which the hourly rate should apply. [See below for articulation of the dollar amount of the hourly rate. i will concur in part and dissent in pa rt. This will form a compromise, with OEA coming off of it?s tying of the hourly rate to a speci?c cell on the salary schedule but increase the hourly rate by the percentage increases applied to the salary schedule in this agreement] 2. Article 6 - Association Rights I concur with the Chair?s recommendation of Association release at 1.5 hours per month, with the proviso that these hours not to displace professional development training time. 3. Article 10 Hours of Work a. Hourly Rate I concur in part and dissent in part. I concur with the Chair?s recommendation that the hourly rate increased, but I recommend the hourly rate be set to the lowest hourly rate possible using Step 1 Column 1 of the certificated salary schedule. To understand how that is to be calculated we need to note that the OUSD currently uses a system to determine hourly rates that is based on the salary schedule: They take the daily rate and divide by six If we do the math based on my recommendation for salary increases below, the hourly rate for 2018?19 would be $44.27, and would increase automatically with out-year increases to the salary schedule. i see no rationale for waiting for the next round of negotiations to begin increasing that hourly rate along with the salary schedule, (and thus repeating the mistake of leaving the hourly rate behind.) b. Shift Bell Schedules: 4. I concur in part with the Chair?s proposal to leave the bell schedule at status quo for 2019-20 with a sunset agreement and with a commitment from the parties to communicate with, and gather input from community members, but I add that the parties should commit to bargain in good faith, a new bell schedule, and the impacts and effects of any bell schedule changes. The parties should further commit that they will choose a bell schedule that does not put an onerous burden on parents and/or students, and thus drives more families to choose other educational options. c. Daily Prep change to either beginning or end of day: I concur in part and dissent in part. I agree with the Chair?s recommendation to leave prep time at status quo for 2019-20 and to include this topic in the negotiations of the impacts and effects of the bell schedule changes. However, I don?t recommend a sunset of the current prep language, (as is recommended for the bell schedule) but rather a re- opener to correspond with the bell schedule negotiations. If the parties agree to shifting bell schedules, and also agree that the new bell schedule necessitates shifting prep times, then they will easily reach agreement. If the parties do not come to any such agreement, then the current prep schedule should remain in force. Article 12 Transfers and Reassienments concur with leaving this as status quo- focusing increasing services to schools in need through Article 15 Class Size, and Article 21 Specialized Caseloads. Article 13 8: 25 Evaluation and Peer Assistance and Review I concur with the Chair?s recommendation that the parties work to implement the new TGDS evaluation system with the same protocols and support that were in place during the pilot period. The success of any evaluation system is dependent on the support it is given. I also concur with the Chair?s recommendation on Article 25 Peer Assistance and Review. 6. Article 15 - Class Size I concur in part and dissent in part. I dissent on not attaching an additional reduction to the final year of the agreement. The task force proposed by the Chair can still be formed to work on any challenges that this reduction schedule presents. Attaching an additional reduction in the 3rd year of the agreement gives the district time to re?orient its budget appropriately, and it gives the parties ample opportunity to eliminate any unintended consequences negotiating a benchmark for classes and/or programs that are in high demand and therefore not subject to reductions that would force students out of those programs). I therefore concur with a class size reduction of 1 applying to the top 20% of schools of need in July of 2019, and an across the board reduction of 1 in July of 2020, but I also propose that the parties agree to begin the 2021? 22 school year with a further reduction of 1 for those top 20% of schools in need. Regarding average pay, I dissent with the Chair's recommendation. The status quo is that there is no contract language regarding average pay meaning that overages are simply not allowed in the current contract. When averages occur, they are in violation of the contract. The parties regularly deal with those violations by reaching agreement within the grievance process, resulting in extra compensation for the effected unit members. For OEA to agree to averages that are less punitive than the settlements they are currently getting would create a reverse incentive for the district. In other words, the district would be more inclined to over ?ll classrooms than under the current system. I therefore recommend the parties agree to one of two options: 1) proposal of $25 daily per?pupil, per?day for elementary teachers and $8 per?pupil, per?period for secondary teachers, or 2) status quo. Article 17 Safety I concur with the Chair? 5 recommendation to note the School Board policy on OUSD being a sanctuary district without reciting it, thus allowing the Boa rd to make changes as required by law. Though one would think that this could be accomplished through Article 19 Savings Provision, since that language is limited to court decisions and does not speci?cally reference changes in law, the Chair? 5 recommendation is the clearest way of providing protection for OEA members. For the sake of transparency, I recommend including the Board policy language in an appendix, with whatever notes are necessary to allow Board flexibility based on changes in law. I also concur with the Chair?s recommendation to adopt OEA's proposal to expand the safety committee to include community members. Article 21 Specialized Caseloads Given the districts burgeoning newcomer student population and the unique needs that they bring, I must concur in part dissent in part as follows: a. Counselor I concur with the Chair?s recommendation; 1:500 to 1:550 if reductions in force take place. b. Nurses dissent with the Chair's recommendation. Both compensation and caseload make it difficult to recruit and retain nurses in Oakland. I recommend that both issues be addressed in this agreement. The union?s ratio pr0posal will certainly make ?lling positions more challenging there will be more positions to ?ll, but it will also make ?lling positions easier, because prospective candidates will be assured of a reasonable work-load. therefore recommend the union?s position of a 1:700 ratio. Regarding bonuses to attract nurses, I concur with the Chair? 5 recommendation to include a signing bonus $5,000 in the agreement, but I dissent with the notion of providing retention bonuses. in the STRS environment bonuses are particularly troublesome as they do not provide added security for retirement. In the long term, it would not be helpful for nurses to see a bi-annual temporary source of income that would not be credited toward their retirement. I therefore recommend that the parties negotiate a salary scheme for nurses that aligns their salaries to those of the It should be noted that have expanded work hours and work days. My recommendation would be for the parties to ca iculate the nurses? salary proportional to the hours and days of work. With both higher salaries and lower caseloads, the challenge of recruiting and retaining nurses can be addressed effectively. I would also encourage the parties to work out a reasonable timeline for implementation of the nurse to student ratio. c. - I concur with the Chair?s recommendation for an increase of three (3) positions SLPs concur with the Chair?s recommendation to use 55 as the district?s caseload cap. e. RSP I dissent with the Chair?s recommendation. Being as the district is already staffed at 26:1, I recommend codifying 26:1 as the district?s caseload cap. The parties should be encouraged to negotiate overage language that allows the district time to adjust caseloads as students come and go. f. Newcomers - I am hopeful that the class size and caseload provisions above will begin to address the added support needed for newcomer students, but more targeted support is also necessary. ltherefore concur with the Chair? 5 recommendation that the parties form a task force to study the needs of newcomers and make recommendations to the School Board and/or the bargaining parties as appropriate, but I further recommend that the parties agree to add one (1) extra FTE for schools that have over 75 newcomers, for the purpose of developing and executing programs of support. Article 24 - Compensation I concur in part and dissent in pa rt. The lack of a competitive salary schedule in Oakland is not a new phenomenon. The district has for decades over~spent on administrative costs. it is now engaged in providing sweetheart deals to charter schools at the expense of OEA members (those who actually deliver quality instruction to OUSD students). The Chair is being sensitive to the administration?s need to show ?nancial viability in the 3rd year of their multi-year projections, and i understand that those projections can be challenging. However, locking in that 3rd year is vitally important as it has the effect of demanding that the School Board and the administration immediately re?prioritize those out-year budgets in order to meet the modest increases that OEA members demand. I am also sensitive to frustrations that the district administration might be allowed an extra year to fix problems as a reward for not coming to an agreement for 18 months of negotiations. Therefore, my recommendations are as follows: 3. Salary increases concur in part and dissent in part: i. 2017-18 3% fully retro ii. 2018-19 3% fully retro 2019-20 - 5% for the full year Again, my rationale for including the 3rd year is that the district has historically promised that they would adjust their priorities in the future that in the future they would shift spending to better re?ect the Board's promise of protecting and improving the teaching and learning environment, and more recently, better reflect the priorities of the district's LCAP. But those promises have almost always been broken. I can recall doing a fact~finding here in Oakland almost 10 years ago, at the end of which the parties agreed that the district was spending too much on administrators and not enough on teachers. That problem has only gotten worse in the intervening years. I therefore recommend that this agreement lock the district into spending money where it is most effective (in the classroom) and thus force the district to re?prioritize its budget. An agreement now gives the district several weeks to build an appropriate budget prospectively in their next Multi-Year projection (2"d Interim Report, due March 15). The Oakland community cannot continue to wait for the OUSD School Board and administration to ful?ll this promise. b. Substitute pay concur with the Chair? 5 recommendation of $180 up through day 59 and $195 for 60 days or more, and that any substitute who achieves the 60 days in one school year will have the higher rate carry over to the following school yea r. Finally, on the issue of the impact of charter schools, I very much appreciate the Chair?s willingness to weigh in on the state-wide structural problem with charter school funding and the unlevel playing ?eld that makes it more dif?cult for school districts to adequately serve their mm-l'thl-ICD students. But I must urgently point out that OUSD is unique in its abdication to charter expansion at the expense of its own schools. One example of this is the district?s agreement to give the Lafayette site to KIPP Bridge Charter School nearly rent free for 40 years in exchange for KIPP building $9.9 million worth of new buildings. This scheme, by the OUSD School Board?s own design, will cost them over $750 million dollars in state revenue over the term of the agreement. Under any circumstances this deal would raise eyebrows to anyone who cared about maintaining budget. But in an environment in which OUSD is choosing to close neighborhood schools in order to reduce its capacity, to simultaneously give away $9.9 million in rent and $750 million in state revenue, all so that a competing charter school can increase its capacity is unfathomable. OUSD needs to stop outsourcing its academic program, keep its neighborhood schools open, and work with its employees to design ways to encourage the re? patronage of students and families who have chosen other educational options. If OUSD continues on its current path, it will continue to experience a death spiral in which students and families are under~served by a top heavy district and budget constraints, and therefore elect to leave for charter schools, thus further burdening the OUSD budget, thus leading to less service to students. 70 Washington Street, Suite 205 Fagen Friedman Fulfrost, LLP Oakland, California 94607 Main 510?550-8200 - Fax 510-550-8211 CONCURRENCE AND DISSENT OF EMPLOYER PANEL MEMBER I fully agree with most of the main recommendations and factual ?ndings of the Panel Chair. I write separately to emphasize certain facts and realities confronting the Oakland Uni?ed School District and the Oakland Education Association (Union). The recommendations made here ?ow from those realities as re?ected in the record of evidence presented in the fact?nding hearing. I hope the parties will recognize the common realities they both face. By reaching a common understanding, I encourage frank and candid discussions aimed at resolving the current labor dispute in a way that does not further harm or disrupt the educational environment for District students, families of those students, and the employees of the District. Limitations of the Local Control Funding Formula As the Panel Chair explains, and as both parties acknowledged in their presentations, California's "new" Local Control Funding Formula (LCFF) fundamentally changed the way local school districts receive revenue from the state. Beginning in 2013, urban school districts like Oakland that have higher concentrations of students with unique needs receive additional revenue in the form of supplemental and concentration grants under the LCF funding formula. As a consequence, the LCFF formula has benefited Oakland and similar districts with higher concentrations of unduplicated pupils that generate those additional dollars. However, we must remember that a central purpose of LCFF was to provide "full funding" to California school districts following the Great Recession that began in ?scal year 2008-2009. Yet the concept of funding actually meant restoring funding to the pre-Great Recession funding levels in 2007-2008, and doing so over a period of eight years. The State was able to achieve this "full funding? after six years, instead of eight. Nevertheless, restoring school funding to 2007-2008 levels in 2018 is not truly "?Jll funding." The sobering reality is that even under LCFF, California's per pupil funding for students remains at virtually the very lowest in the nation. This fact exacerbates an already fragile ?scal situation in the District. Accordingly, the overall state funding the District receives falls far short of what is adequate to truly meet the educational needs of students and provide competitive compensation to teachers and other educators inside and outside of the classroom. This ACTFINDING REPORT CONCURRENCE AND DISSENT OF EMPLOYER PANEL MEMBER Oakland, California 94607 70 Washington Street. Suite 205 Main 510-550-8200 - Fax 510-550-8211 Fagen Friedman 8. Fulfrostinadequacy falls squarely at the doorstep of decision makers in the State Capital but imposes real constraints on the resources actually available to the District. Limitations Associated With the Legacy of State Receivershin Adding further complexities to the current labor dispute is the fact the District continues to operate under the legal authority of a State Appointed Trustee (Trustee). While the District?s elected School Board has full governing authority, the Trustee has the power to "stay and rescind" certain actions of the Board, including any collective bargaining agreement the Trustee determines is detrimental to the District?s ?scal stability.I Therefore, it is important to emphasize that under these circumstances of scare resources, the District has focused those resources on the classroom and direct classroom supports for students. Three facts are key indicators of that focus: (1) the evidence at the hearing established that for every dollar in per student State funding Oakland receives, it spends more on teacher compensation than most other Districts in the comparison group in Alameda County; (2) the evidence demonstrates that class sizes in Oakland are actually lower on average than almost every other school district in Alameda County, and there is no dispute between the parties that the cost of lowering class size throughout the District by even one student is signi?cantz; and (3) the District spends proportionately more than surrounding districts for each student with special needs, and the total contribution from the District?s general fund to support special education services is also higher than many other school districts in the County. These key facts along with others, re?ect the District?s commitment to spend more out of each per-student dollar received directly on teachers than other districts. As result, any assertions that the District is not adequately investing in teachers or students, or not using its funding appropriately, are simply not supported 1 The Panel Chair also points out the ?nancial consequences of that legacy, including the ongoing cost of repaying the State loan. This legacy is not an excuse for action yet it is a reality both the Employer and Union face. 2 As the Chair notes, the dispute is around the exact cost of reducing class sizes by just one student. The Union acknowledged the cost to reduce by even one student district-wide approaches $5 million dollars per year. The District contends the Union drastically underestimates the cost to reduce class sizes by just one student district-wide, in part because the Union does not include necessary facility costs - in the form of additional classrooms - needed to reduce class sizes across the district. The District estimates the cost of the Union's class-size proposals in each category (which includes a two?student reduction district?wide), when added together, exceeds $36 million - not an unrealistic amount given the number of staff that would likely need to be hired and the additional classroom space that would need to be added. Whatever the actual costs both sides agree they are substantial and would be ongoing. FACTFINDING REPORT - CONCURRENCE AND DISSENT 0F EMPLOYER PANEL MEMBER - 2 Fagen Friedman Fulfrost, LLP 70 Washington Street, Suite 205 Oakland. California 94607 Main 510-550-8200 0 Fax 510-550-8211 the fact-?nding record. It is based upon this additional background that I concur with the most of the main recommendations and factual ?ndings of the Panel Chair, as explained below: Article 1: Agreement Concur. Article 3: De?nitions Concur. Article 6: Association Rights Concur. Article 10: Hours of Work Concur as to a) and I dissent to the recommendation on c) and recommend the parties continue to bargain c) this item. Article 12: Assignment and Transfer Concur. Article 13 25: Evaluation (131 Peer Assistance and Review (25) Because the parties have already utilized the new Teacher Growth and Development System (TGDS) as a pilot district-wide, and the bene?ts of the new TGDS evaluation standards were mutually recognized as an improvement over the outdated California Standards for the Teaching Profession (CSTP), I recommend the parties adopt and incorporate the TGDS system as a replacement to the while maintaining the current contract language for the timing, sequence and contract safeguards in the evaluation process. This will provide teachers with the meaning?il professional feedback they desire that supports improved practices in the classroom. Article 15 21: Class Size (15) Specialized Caseloads (21) The evidence presented at the hearing established that the District already has lower average class sizes and caseloads compared to almost every other districts in the County and in most comparable districts with similar student demographics. There was also no evidence presented that the specialized case-loads in the District are above average compared to any of the other Districts in Alameda County. FACTFINDIN REPORT CONCURRENCE AND DISSENT OF EMPLOYER PANEL MEMBER - 3 Fagen Friedman 8: Fulfrost, LLP 70 Washington Street. Suite 205 Oakland, California 94607 Main 510?550-8200 - Fax 510-550?8211 noteworthy that in a recent survey of District teachers, which was referenced in the hearing, and which the Union noted had an almost 70% response rate ?om teachers, class size was not mentioned by teachers as one of the leading factors a?ecting teacher retention. The top two factors were salary and housing affordability in the bay area Indeed, class size was not identi?ed in any of the six categories identi?ed in the Union's presentation. (Tab 6.) Importantly, both parties also recognized in the hearing the signi?cant expense of reducing class sizes by even one student district-wide. That cost was identi?ed as many millions of dollars per year for even a one per-pupil across-the?board reduction in class-size. While there is little question that class sizes are important in the education of students, the evidence in the hearing demonstrated that Oakland?s class sizes are already low compared to surrounding districts in Alameda County. As a result, I dissent with the Panel's recommendation on this issue and recommend the parties maintain the status quo on the current contract language related to both class size and specialized caseloads. While both of those issues are certainly important, there is no compelling evidence to change the status quo at this time. Article 17: Safeg: Concur. Article 24: Compensation: The District did not dispute that its teacher salaries are among the lowest although not the lowest in Alameda County at almost every year of service. 011 the other hand, Oakland provides one of the best health bene?t packages to its teachers compared to most other District's in Alameda County. Yet even recognizing the value of these bene?ts, Oakland's total compensation for teachers lags behind most districts in Alameda County and behind most of the comparable districts in the area. Accordingly, I concur with the recommendation of the Panel Chair of a compensation increase of 3% in each of the ?rst two years of a three-year agreement and contract reopener in the third year to bargain any further increase. Yet, the books on the 2017-2018 year, which led to this fact-?nding, have closed. Therefore, I dissent with the recommendation that this increase begin in FY 2017-2018. If the parties both agreed with the Panel Chair, they would resume bargaining REPORT - CONCURRENCE AND DISSENT OF EMPLOYER PANEL MEMBER - 4 70 Washington Street, Suite 205 Fagen Friedman Fulfrost, LLP Oakland, California 94607 Main 510-550-8200 . Fax 510-550-8211 right now?as a practical matter, which does not seem to bene?t either party in the short, mid or long-term. Instead, I encourage the parties to close out FY 2017/2018 - with some monetary recognition and explore a three?year agreement beginning in FY 2018/2019 and through FY 2020/2021, which may allow for a greater ongoing salary increase than the 6% recommended by the Panel Chair. It may also afford the parties the opportunity to pursue the recommendations for collective internal and external action: encouraged by the Panel Chair. CONCLUSION As outlined above, I concur with most of the main recommendations and factual ?ndings of the Panel Chair. The detailed recommendations of the Panel Chair in this complicated and challenging set of circumstances should help guide the parties to a resolution of their contract dispute. In light of those recommendations, I encourage the parties to focus the District's limited resources on improving the salaries of Oakland?s teachers, since by almost any measure, they are among the lowest in Alameda County, and do so in a ?scally responsible manner and in a manner that looks to the future and not the past. Dated: February 14, 2019 Roy Combs, Employer's Appointed Panel Member FACTFINDING REPORT CONCURRENCE AND DISSENT OF EMPLOYER PANEL MEMBER 5 I declare that I am a resident of or employed in the County of L05 M33135 State of califomja . I am over the age of 18 years. The name and address of my Residence or business is PO. Box 67, Montrose, CA 91021 . do a A On Februrary 15, 2019 . I served the Fact?nding Report (Date) of document{5)) (Demptibn of documentrs) continued) (PERB Case No.) on the parties listed below by (check the applicable method(s)): placing a true copy thereof enclosed in a sealed envelope for collection and delivery by the United States Postal Service or private delivery service following ordinary business practices with postage or other costs prepaid; personal delivery; facsimile transmission in accordance with the requirements of PERB Regulations 32090 and 32135(d). electronic service (e-mail) - I served a copy of the above-listed document(s) by transmitting via electronic mail (e-mail) to the electronic service address(es) listed below on the date indicated. (May be used only iftne party being served has ?led and served a notice consenting to electronic serviae or has electronically ?led a document with we Board See PERB Regulatibn (Include here the name, address email address and/w ex?u?ib} of the Respondent and/or any Omar parties served) Charles King, cking@cta.org Jenine Lindsey, jenine.lindsey@ousd.com Dennis Nelson, bargainingteam@gmail.com John Gray, JohnG@sscal.com Roy Combs, rcombs@i31aw.com Wendi Ross, wross@perb.ca. gov I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on 15. 2019 . at La Crescenta CA (Date) (am (State) Naieethoury k? (4/5/2017) Proof of Service