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Education Secretary Arne Duncan came back to Chicago on Friday to pat state and local leaders on the back for two things: passing state legislation on education and paving the way to accomplish one of the things he didn’t as schools CEO: lengthening the school day. 

 But his successor won’t avoid labor strife as district officials try to accomplish a move that Duncan and his boss, former Mayor M. Richard Daley, could not. 

On Friday, Brown Elementary on the Near West Side voted to join four other schools—STEM Magnet, Mays, Melody, and Skinner North—in approving a contract waiver to add 90 minutes to the day. Several CPS principals contacted by Catalyst Chicago said they, and their teachers, were still considering the district’s offer. 

 At the same time, the teachers union filed a legal challenge with the Illinois Educational Labor Relations Board against the district. 

 Duncan was in town on Friday to participate in a panel discussion about Senate Bill 7, the legislation passed this spring that, among other provisions, allows the mayor to unilaterally set the length of the school day. Duncan said he was so impressed with the legislation that he “felt as though he is in a dream” and that he touts the bill’s provisions as he travels the country. 

 Duncan was in town on the last part of a midwest Back-to-School bus tour that included stops in six states. Duncan also touted the jobs bill introduced by President Barack Obama on Thursday evening. The bill would provide $60 billion in education funding. Illinois would get $1.24 billion that Duncan said that could save 14,500 teaching jobs. The state would also get $1.1 billion for school infrastructure. Of that, Chicago would get $609 million. 

 Members of the panel, which included Gov. Pat Quinn and State Senator Kimberly Lightford (D-Maywood), praised the legislation as a collaborative effort that included the voices of the teacher unions, school management and advocacy groups. 

“It is the right way to do things,” Duncan said. “No one was shut out of the process.” 

This air of collaboration, however, stands in sharp contrast to what has happened since. 

Though the law gave Mayor Emanuel the power to lengthen the day, he couldn’t do it immediately because the union contract setting the school day and year is still in effect until June 2012. 

Emanuel, though, didn’t want to wait. “It is not a question of whether it is going to happen, it is a question of when,” he said Friday. “If it is good for 2012, it is good for now.” 

Emanuel and CPS leaders tried to use a back-door approach. First, the CPS Board of Education said it had no money to pay contractually-promised teacher raises of 4 percent. Then, CEO Jean-Claude Brizard immediately made it clear that he wanted to use the raises as a bargaining chip, offering elementary teachers a raise of 2 percent in exchange for a longer school day. 

Chicago Teachers Union President Karen Lewis balked, saying that her union was not going to vote to terminate the current contract. 

Since then, five schools have voted for a waiver that would allow the extension of the school day. In exchange, the teachers were offered a $1,250 bonus, which amounts to a 2 percent pay raise. The schools also got an extra $150,000 if they were going to start immediately or $75,000 if they started in January. Emanuel said on Friday that more schools will vote in the coming weeks. 

Kent Nolen at Chalmers Elementary, a predominantly black, low-income school in North Lawndale, says he would like his teachers to pass the measure, but the reception has been “lukewarm” because of Emanuel's involvement and the political fight.

 “Our kids are ultimately going to benefit from an extended school day,” Nolen says. “Our school community, our parents, our local school council, all agree.” 

He notes that many teachers already work off the clock, running activities before school as early as 7 a.m. and after school as late as 6 p.m., as well as on Saturdays. Last year, the school posted strong reading and math gains, and is determined not to be a “one-hit wonder,” Nolen adds.

It is unclear exactly how the district plans to pay for the initiative, although Emanuel said Friday that the district would have to find ways to cut the bureaucracy to do so. To give 480 elementary schools $150,000 each would cost about $72 million. And to give the 20,000-plus elementary school teachers an additional $1,250 would cost about $25 million. 

Added together, that’s more than it would cost the district to pay all teachers the 4 percent raises that officials rescinded. 

As for more cuts, the board recently passed a budget that already calls for another $50 million in central office cuts and $30 million in program cuts.  

Legal challenge to the district 

In addition to pushing its legal challenge against the district, the union faces a steep public relations challenge in the weeks ahead. Under Lewis’ leadership, the union has sought to build strong ties with community organizations while arguing for democratic, locally controlled schools and drawing attention to the inequalities that affect urban schools. 

 But the mayor and the district are portraying the waiver votes as a sign that teachers are being given the chance to have a voice on the issue, and points out the strong support for a longer day among parents, others in the community and teachers themselves. 

The union’s legal argument against the district, according to the complaint, is that: 

 • Schedule waivers should only be used to change the start and end times of the school day, but not its length, “which is unambiguously capped at 7 hours.”

 • By offering teachers money in exchange for schedule waivers, and by making waivers part of a system-wide effort, CPS is working directly with teachers in an effort to avoid dealing with the union.

 • The district conducted votes that in some cases were not secret, did not have voting procedures approved by each school’s CTU delegate, and included staff who are not members of the CTU – in violation of the waiver procedure outlined in the union’s contract.

 But CPS attorney James Franczek sees it differently. 

“The statute and the contract is extremely clear that the staff, the teachers and the principals have the right to make these decisions at the local school level, and that’s what happened here,” Franczek says. “There have been scores of contract waivers that have dealt with a multitude of issues, including the day. This is not all that unusual.” 

Franczek also denies allegations in the union complaint that accuse the district of improprieties: that the principal at STEM Magnet offered teachers iPads and a paid comp day each quarter in exchange for approving the longer day; that a principal questioned teachers about union activities at STEM Magnet, which “unlawfully intimidates an employee”; that a principal at Melody noted that a vote could stave off school closure; and that at Laura Ward, where the union claims another vote was held, teachers were told the extra discretionary money could prevent layoffs. 

“We do not believe, and certainly do not know, that any principals or anybody at CPS acted at all inappropriately,” Franczek says. 

Ward’s Principal Relanda Hobbs says the incident – in which, the complaint states, she asked teachers to mark on sample schedules whether they agreed with the idea or not -- was just an informal survey to find out if there was enough interest to justify a vote. 

If she were going to hold an actual vote on a schedule waiver, she adds, she would do it properly, with approval from a union delegate. But for now, she’s still trying to figure out where her teachers are. 

Some merit to legal challenge? 

 Mike Zimmer, a labor and employment law professor at Loyola University, says the union’s argument may hold water. 

“The whole principle of our collective bargaining system, both for private sector and public sector employees like these teachers, is that the union is the exclusive bargaining representative of all of them,” he says. “The employer has to bargain with the union for all of the employees. It can’t bargain with anyone else, including the individuals.” 

He says that if the union can prove its claims about special favors like the iPads and comp days, it “has a pretty good case.” 

But even aside from that, he says, CPS’ attempt to use the contract waivers on a citywide scale raises a red flag. 

 “They are trying to do an end run around the union, which is exactly what the law doesn’t allow,” he says. “They have got to bargain with the union, and if the union says no during the term of a contract, that’s the end of it.” 

Matthew Finkin, a labor law professor at University of Illinois – Urbana-Champaign, said that the issues involved in the complaint are complicated. 

But “to deal with an individual [instead of] the union is to question the integrity of the union. It’s to question its role,” he notes. 

Unless the contract allows it, “individual dealing” would be an unfair labor practice, he says. The question of how the district has used waivers in the past, and how state law allows them to be used, may become key questions. 

 If the CTU were to succeed, the labor board could order CPS to roll back the extended day and extra pay, “and I’m sure the losing party would take it to court,” Finkin says. Since the board doesn’t have the power to enforce its rulings, it could also seek a court order against the district.