1 1 IN THE MATTER OF THE ) 2 ARBITRATION BETWEEN: ) 3 4 ILLINOIS STATE BOARD ) 5 OF EDUCATION ) No. FMCS 10-59615A 6 and ) 7 IFT and LOCAL 3236, ) 8 9 DENIAL OF ADJUSTED WORK TIME 10 FOR TRAVEL 11 12 REPORT OF PROCEEDINGS had at the 13 arbitration of the above-entitled matter, beginning 14 at 9:15 a.m., May 10, 2011, at 100 West Randolph 15 Street, Chicago, Illinois, before Edwin H. Benn, 16 Arbitrator, to whom the matter in difference 17 between the parties has been submitted for 18 settlement. 19 20 21 22 23 Reported by: Frances S. Lucente CSR 24 License No.: 084-004005 2 1 APPEARANCES: 2 ILLINOIS STATE BOARD OF EDUCATION, by 3 KRISTIN ALFERINK, ESQ. 4 100 NORTH FIRST STREET 5 SPRINGFIELD, ILLINOIS 62777 6 (217) 782-6434 7 Representing ILLINOIS STATE 8 BOARD OF EDUCATION, 9 10 IFT and LOCAL 3236, by 11 LEAHY LAW OFFICES 12 MARY LEE LEAHY, ESQ. 13 308 EAST CANEDY STREET 14 SPRINGFIELD, ILLINOIS 62703 15 (217) 522-4411 16 Representing IFT and LOCAL 3236 17 18 ALSO PRESENT: 19 DONALD W. EVANS- DIRECTOR, HUMAN RESOURCES 20 ANDREA WINGO - ADMINISTRATOR, STUDENT 21 ADVISORY COUNCIL 22 DANA KINLEY - ADMINISTRATOR - 23 SCHOOLWIDE PROGRAMS 24 JOHN LITTLE - FIELD SERVICE DIRECTOR 3 1 I N D E X 2 WITNESS DX CX RDX RCX 3 PATRICK LEE 4 By Ms. Leahy 14 51 5 By Ms. Alferink 27 57 6 7 PHYLLIS JONES 8 By Ms. Leahy 59 9 By Ms. Alferink 66 10 11 JULIE FLENTJE 12 By Ms. Leahy 75 13 By Ms. Alferink 79 14 15 JAMES P. MATHIS 16 By Ms. Leahy 82 17 By Ms. Alferink 85 18 19 Patrick Murphy 20 By Ms. Alferink 90 125 21 By Ms. Leahy 99 22 DONALD EVANS 23 By Ms. Alferink 131 167, 176 24 By Ms. Leahy 150 170 4 1 E X H I B I T S 2 NUMBER MARKED FOR ID RECEIVED 3 Joint Exhibits 4 No. 1-4 5 5 6 Union Exhibits 7 No. 1 13 13 8 No. 2 13 9 No. 3 13 13 10 No. 4 13 58 11 No. 5 13 74 12 No. 6 89 89 13 No. 7 69 74 14 No. 8 154 167 15 16 Employer Exhibits 17 No. 1 38 58 18 No. 2 98 99 19 No. 3 139 146 20 No. 4 142 146 21 No. 5 144 146 22 23 24 5 1 (Whereupon, Joint Exhibits 1 2 through 4 were marked for 3 identification.) 4 ARBITRATOR BENN: Good morning everyone. I 5 have two joint exhibits. Joint Exhibit 1 is a 6 packet of documents called a Grievance Report. 7 Joint Exhibit 2 is the 2005-2009 Collective 8 Bargaining Agreement. I have six Union exhibits 9 which have been identified so we'll be going 10 through those in testimony, I take it. 11 The Board has objected to admission of 12 those exhibits, but the Joint exhibits are in. The 13 Union frames the issues as follows: First, did the 14 employer violate the Collective Bargaining 15 Agreement when Patrick Murphy issued an E-mail on 16 or about November 24, 2009, which is contained in 17 Joint Exhibit 1. The second issue is did the 18 employer violate past practice when Patrick Murphy 19 issued the E-mail on or about November 24th, 2009. 20 It's the same E-mail contained in Joint Exhibit 1. 21 The third issue is if either of the first two 22 issues are answered in the affirmative, what is the 23 remedy. 24 The Board agrees with the Union's 6 1 statement of the first issue and that's whether the 2 E-mail violated the Collective Bargaining 3 Agreement, but the board does not believe that 4 there was a past practice and if there was the 5 plain language trumps the past practice. The Union 6 states that is argument. 7 I understand the issues in this case and I 8 can formulate an issue off of those. There's been 9 a motion to exclude witnesses which has been 10 granted, and I believe we're about ready to go. 11 First, I have to ask you if that's agreeable as to 12 what we've done so far? 13 MS. LEAHY: Yes. 14 MS. ALFERINK: Yes. 15 MS. LEAHY: I believe there is one more issue 16 though that I meant to address when we talked about 17 Joint 2. At the time of the events, technically 18 this Agreement had expired, but it continued to be 19 in effect by agreement of the parties until the 20 subsequent contract was signed off. I believe that 21 was not until March of 2011. Is that your 22 understanding, Ms. Alferink? 23 MS. ALFERINK: The new Agreement was signed in 24 February of this year, but otherwise that is my 7 1 understanding. 2 MS. LEAHY: I just wanted to be sure that 3 Joint Exhibit 2 was in effect in November of 4 2009. 5 MS. ALFERINK: I agree. 6 ARBITRATOR BENN: Okay, thank you. How does 7 the Union see this case? 8 MS. LEAHY: The grievance arises out of the 9 E-mail sent by Patrick Murphy on or about 10 November 24th, 2009. In that E-mail he indicates 11 that past practice has allowed for time spent 12 traveling to be used toward adjusted work 13 accumulation. It is my understanding that adjusted 14 work accumulation is comparable to comp time. In 15 his E-mail, Mr. Murphy advises the staff that such 16 accumulation will not be approved moving forward 17 and that staff will not be eligible to accrue 18 adjusted work time for time spent traveling. The 19 Union contends that in the past travel time, if it 20 exceeded the workday, was used as accumulated 21 adjust the work. The Union believes that this 22 E-mail was reinforced by memos issued later by 23 management of the I-S-B-E, the Illinois State Board 24 of Education, commonly known as ISBE. That would 8 1 be Mr. Amarowski's memo issued on February 17th, 2 2010 and Miss Lisbowa's memo issued on May 6th, 3 2010. There was no discussion of this change in 4 past practice with the Union before Mr. Murphy 5 issued that E-mail of November 24th, 2009. 6 The evidence will show that the Union was 7 not aware of such a change until they actually saw 8 this E-mail. This change had different effects 9 upon different employees. For example, Mr. Lee, 10 who we will call as a witness, had to go out as 11 part of his job distribution, had to travel to 12 various schools. Therefore, how travel is handled 13 becomes a very important issue for him. If he has 14 to be at the work site -- meaning a school -- at 15 the beginning of his workday, he has to in a sense 16 eat that travel and it's on his own time. As you 17 will hear, that can range from a short amount of 18 time to a long amount of time -- in fact, two or 19 three hours. 20 Other employees are required to go out 21 into the state and visit schools but at a much 22 lesser rate. Finally, there are people who only 23 have to travel occasionally, and then there are 24 people who do not have to travel under the terms of 9 1 their job description. This change in past 2 practice results in certain employees, but not all, 3 having to use their vacation time and their 4 personal time, which they've accumulated, if they 5 wish to be paid in any way for their travel time. 6 It's almost as though management was imposing 7 furlough days or getting certain employees having 8 to contribute their own time or their earned time 9 when they travel on business which is necessitated 10 by their job description. So some employees in the 11 Union are affected greatly. Other employees are 12 not affected at all. There is no uniform 13 practice. It depends on your job description, 14 which is what has been issued by ISBE. We believe 15 it violates certain terms of the Collective 16 Bargaining Agreement and also violates the past 17 practice. 18 ARBITRATOR BENN: What's the remedy you seek? 19 MS. LEAHY: I'm sorry, I didn't understand 20 that. 21 ARBITRATOR BENN: What is the remedy that you 22 seek? 23 MS. LEAHY: That the past practice be 24 reinstated. 10 1 ARBITRATOR BENN: Is there any make whole 2 relief involved in this? 3 MS. LEAHY: If you so hold, it would go down to 4 going back and reviewing the travel records of the 5 affected employees to determine how much personal 6 or vacation time should be restored to them and how 7 much adjusted work should be restored. 8 ARBITRATOR BENN: I haven't looked at this yet 9 obviously. Can you tell me what sections of the 10 Agreement are affected or govern this case. 11 MS. LEAHY: In the grievance it outlines 12 Article 2, Section 5; Article 5, Section 2; 13 Article 5, Section 3; Article 25, Section 7. 14 If you go to Article 5, Section 2 I believe will be 15 the real bone of contention. The normally 16 scheduled workday will consist of seven and 17 one-half hours, excluding an unpaid lunch period. 18 For years, the practice had been that travel time 19 which exceeds that would then become this adjusted 20 work time. 21 ARBITRATOR BENN: All right. Thank you. How 22 does the Board see it? 23 MS. ALFERINK: Article 5, Section 3 is clear. 24 I believe the evidence will show that it allows for 11 1 adjusted time, which as Ms. Leahy indicated is 2 commonly referred to as comp time for hours worked 3 over 37-1/2 hours in a given week. The evidence 4 will show that in late in 2009 the director of 5 human resources, Mr. Evans, who as part of his job 6 duties is charged with ensuring compliance with the 7 bargaining unit agreement, learned of a manager 8 deviating from the plain language of the contract. 9 That manager, Mr. Murphy, was given comp time for 10 time spent traveling to and from work locations. 11 As a result of a conversation between Mr. Evans and 12 Mr. Murphy and Mr. Murphy's supervisor, the manager 13 sent the E-mail out that forms the basis of this 14 grievance. 15 You will hear from Mr. Murphy that he is 16 not a lawyer, did not know that past practice was a 17 legal term, did not intend to use past practice in 18 the commonly referred to legal sense of the word. 19 That E-mail did indicate that he was no longer 20 going to be violating the plain language of the 21 contract, and he reiterated that with a memo he 22 sent to his staff in January of 2010. You will 23 hear that the E-mail did not change travel status 24 and did not preclude travel during work hours. In 12 1 fact, you will hear that many employees do still 2 travel during work hours. The E-mails from Jeff 3 Aranowski, who works for Patrick Murphy as well as 4 Robin Lisbowa, are not relevant. They're 5 completely different issues. The E-mail sent by 6 Mr. Aranowski in February of 2010 and the E-mail 7 sent by Ms. Lisbowa in May of 2010 addressed when 8 an employee was supposed to be at a work location 9 did not in any way address comp time, nor was it 10 intended to include or address comp time. The 11 Union then grieved this E-mail. The narrow issue 12 as we've discussed is only whether or not 13 Mr. Murphy's E-mail in trying to comply with the 14 plain language of the contract violated the 15 contract. We have required employees to take 16 benefit time when they do not show up at their work 17 location on time, be it a travel location or be it 18 the Chicago office of ISBE or the Springfield 19 office of ISBE. 20 I believe at the conclusion of the case 21 you will find that there was no past practice, the 22 Union did not and cannot meet its burden to 23 establish past practice, and that there was no 24 violation of the contract. 13 1 ARBITRATOR BENN: Off the record, please. 2 (Discussion off the record.) 3 ARBITRATOR BENN: It's my understanding there 4 is no dispute as to the authenticity of Union 5 Exhibits 1 and 3. Those are the E-mails from 6 Schmidt and Lisbowa. I'll receive those in 7 evidence at this point. The parties can argue what 8 weight I should attach or not attach to it at the 9 end of the proceeding. 10 With respect to Union Exhibit 2, that 11 appears to be a seven-page document. The Union 12 states it presently doesn't have the other pages. 13 This E-mail is Page 3 of 7. The Union has 14 withdrawn that exhibit because it states that the 15 E-mail is the same as Union Exhibit 3. So with 16 those caveats, I'll take Union 1 and 3 into 17 evidence. Union 2 is withdrawn. All right. Time 18 for a witness. 19 (Whereupon, Union Exhibit 20 Nos. 1-6 were marked and 1 & 3 21 received in evidence.) 22 ARBITRATOR BENN: Time for a witness. 23 MS. LEAHY: We would call Mr. Lee. Would you 24 swear the witness, please. 14 1 (Witness sworn.) 2 PATRICK M. LEE, 3 called as a witness herein, having been first duly 4 sworn, was examined and testified as follows: 5 DIRECT EXAMINATION 6 BY MS. LEAHY: 7 Q. Mr. Lee, normally you would be in the same 8 room, but would you state your name please. 9 A. Patrick, middle initial M, last name Lee, 10 L-e-e. 11 Q. And your professional address, Mr. Lee? 12 A. 100 West Randolph Street, Chicago, 13 Illinois, Suite 14-300. 14 Q. When were you born, Mr. Lee? 15 A. April 18th, 1966. 16 Q. What is your educational background? 17 A. I have a Bachelor of Arts Degree in 18 Accounting. 19 Q. When did you receive that degree and from 20 where? 21 A. It was confirmed in May 1989 from Dillard 22 University in New Orleans, Louisiana. 23 Q. You're currently employed at the Illinois 24 State Board of Education, correct? 15 1 A. Yes. 2 Q. When did you first go to work for the 3 Board? 4 A. I was hired June of 1989. 5 Q. Have you worked continually for the 6 Illinois State Board of Education since that time? 7 A. Yes. 8 Q. What is your current position? 9 A. Principal consultant. 10 Q. How long have you held that job? 11 A. Since management came up with that title 12 in 2005 or something, but the name has changed. My 13 professional title has changed over the years. 14 Q. But have you done the same work over those 15 years? 16 A. Over my 22 years of working here, no, it's 17 changed. I call to call myself an auditor. I was 18 originally hired as an auditor. Right now I do 19 compliance work, which is similar to auditing. 20 MS. LEAHY: Mr. Benn, could I ask that the 21 witness be shown Union Exhibit 4. 22 THE WITNESS: Okay. I have it. 23 BY MS. LEAHY: 24 Q. Can you identify that document? 16 1 A. Yes, this is my P-A-R. 2 Q. Is it fair to translate that into your job 3 description? 4 A. Yes. 5 Q. Briefly, please tell the Arbitrator what 6 you do in your job. 7 A. Okay. I visit non-public schools for 8 recognition purposes. I also receive telephone 9 calls, E-mails, GOCA letters, which is the 10 Government Office of Community Affairs. I deal 11 with those issues concerning public school 12 compliance or recognition. 13 Q. Now when you say you visit non-public 14 schools for recognition purposes, what do you mean 15 by recognition purposes? 16 A. Okay. What I mean by recognition is 17 voluntary recognition whereby the non-public 18 schools voluntarily go through a process based on 19 our administrative rules, Part 425, to apply for 20 recognition. They have to do it annually. So I 21 review the documentation, and then I may go to the 22 school based on our cyclical visit to visit these 23 schools to make sure that they are in compliance. 24 Q. You said you also deal with public schools 17 1 on compliance issues. Again, is that to see if 2 they're in compliance with certain rules of the 3 Board? 4 A. Yes, with the school code and the 5 administrative rules. I haven't gone to any public 6 schools that I can recall. Recently, in this 7 position primarily it's been non-public schools. 8 Because if I may just say with the public schools 9 it's more answering telephone calls and E-mails and 10 responding to concerns that administrators or 11 parents may have concerning the public schools. 12 Q. Mr. Lee, who do you report to? 13 A. I report to Jeff Aranowski. He's my 14 division supervisor. Then my division 15 administrator is Mr. Patrick Murphy. 16 Q. Do you know Mr. Murphy's title? 17 A. I call him division administrator. I 18 don't know if that's his title. That's the title 19 that I call him. I don't know if that's his 20 official title. 21 Q. Do you know who he reports to? 22 A. I believe he reports to Dr. Linda Lee 23 Tomlinson. 24 Q. Do you know who Ms. Tomlinson reports to? 18 1 A. I believe she reports to Dr. Christopher 2 Allan Cook, state superintendent. 3 Q. Mr. Lee, you referred to traveling to 4 visit non-public schools? 5 A. Yes. 6 Q. Do you have any geographical territory 7 that you're responsible for? 8 A. Primarily, Northern Illinois, the Chicago 9 metropolitan area. I'll go as far west as the 10 Illinois-Iowa border. Depending on the need, I may 11 do a school like in Champaign County or Ford 12 County, but primarily it's the Chicago metropolitan 13 area. 14 MS. LEAHY: Mr. Benn, May I ask that Mr. Lee be 15 shown Joint Exhibit 1. 16 THE WITNESS: Okay. 17 BY MS. LEAHY: 18 Q. Mr. Lee, I call your attention to part of 19 that document that refers to an E-mail to 20 Mr. Murphy. Are you familiar with that E-mail? 21 A. What page is that? 22 Q. Page 1? 23 A. Oh, the language right here? Yes, I'm 24 familiar with this E-mail and the date. I have a 19 1 copy of the E-mail. 2 Q. Mr. Lee, prior to that E-mail, let's just 3 pick a place that you would travel to both before 4 and after November of 2009. 5 A. Okay. 6 Q. What school did you pick? 7 A. Okay, say before this 2009. 8 Q. And after. 9 A. So, for example, a school in Cook County, 10 you want the name of the school or what do you 11 want? 12 Q. Yeah, and location, so we just get an 13 example of whether there was any change after this 14 E-mail. 15 A. Well, I have some specific information in 16 here. Can I look at my information in here or just 17 the top of my head? 18 Q. Yes, let's just testify from what you 19 recall. 20 A. Okay. I did a school, say St. Joseph High 21 School in Westchester Illinois. You want to know 22 how that day went or something or what? 23 Q. Well, before this E-mail, you had to 24 travel to St. Joseph High School to do the visit to 20 1 see if they were in compliance; right? 2 A. Right. Okay. 3 Q. You had to do the same thing afterward, 4 right, after November 25th? 5 A. Yes. November 24th, yes. 6 Q. Was there any change in how your travel 7 was treated before and after that E-mail came out? 8 A. Okay. Yes. So before the E-mail came 9 out, I would leave from my home typically before 10 8:00 o'clock to arrive at the school by 8:00 11 o'clock. That time that I left before 8:00 would 12 be considered my workday -- adjusted work time -- 13 because I was leaving before my normal start time 14 of 8:00 o'clock. 15 Q. What time would you leave to get to 16 St. Joseph's school? 17 A. Typically, well, depending on that school, 18 the location, maybe around 7:00 or 6:45, depending 19 on what time I wanted to get there. Sometimes, 20 like for an example, if I did a school like in the 21 City of Chicago, it might take an hour and a half 22 or two hours to get to that school. So I would 23 leave at 6:00 and maybe get there at 8:00 or 8:30. 24 It depends, but the point is if I left before 8:00 21 1 o'clock that was adjusted work time. 2 Q. So the time between leaving your home and 3 your normal workday, which I gather from what you 4 said your start was 8:00 o'clock in the morning -- 5 A. Yes. 6 Q. That would be adjusted work time? 7 A. Yes, assuming that I went through the 8 proper procedures in the contract, submitted the 9 paperwork to Mr. Aranowski and Mr. Murphy and they 10 approved it, which they always did. 11 Q. What is adjusted work time? 12 A. Adjusted work time is time that you accrue 13 if you work or travel before your normal workday 14 begins, so it's like comp time or something like 15 that. 16 Q. So then the time between the time you left 17 your home to go visit the school and 8:00 o'clock 18 would be considered adjusted work time, and you 19 would accumulate that; correct? 20 A. Yes, I would get credit for that. 21 Q. Let's take it to the end of the day. What 22 was your normal end of your workday, what time? 23 A. 4:00 o'clock. 24 Q. If you stayed at the school beyond 22 1 4:00 o'clock, would you receive adjusted work time 2 for that? 3 A. Yes. And if I arrived home from the 4 school after 4:00 o'clock, I would receive adjusted 5 work time. 6 Q. Since November 24th, how was your travel 7 handled? 8 A. I need to arrive at the school by 9 8:00 o'clock, and I need to stay at the school 10 until 4:00 o'clock. If I arrive after 8:00 11 o'clock, I need to take benefit time, like 12 vacation time or personal time. If I leave before 13 4:00 o'clock without management's approval, I would 14 have to take benefit time or personal time. 15 Q. Let me see if I understand this. If you 16 leave your home prior to 8:00 o'clock and you wish 17 to be paid for that time, you have to put in for 18 personal or vacation time; is that right? 19 A. No. After November 24th -- well, actually 20 not after November 24th. It was on or about 21 February 17th, 2010. 22 Q. What happened on February 17th, 2010? 23 A. That's when management sent out an E-mail 24 of policies that explains all of these requirements 23 1 that if you leave before -- you have to arrive at 2 your scheduled school visit or field visit at the 3 precise time you would start in the office. In my 4 case, that's 8:00 o'clock. 5 Q. So if you were going to visit St. Joseph's 6 in Westchester, you had to be there at 8:00 7 o'clock? 8 A. Yes. 9 Q. Were you compensated in any way for your 10 travel time? 11 A. No. No, ma'am, not after February 17th. 12 Q. Now you made mention of using vacation or 13 personal time. Can you explain that? 14 A. Yes. Since February 17th of 2010, there 15 have been instances that I've documented where I 16 have had to use personal and/or vacation time 17 because I arrived at school say 30 to 45 minutes 18 after 8:00 o'clock, and I can give a clear example 19 of one of those. 20 Q. Please do so because we're trying to 21 understand the system. 22 A. There was a visit I did. I believe 23 April 14th, 2010, I did a school in the Rogers Park 24 neighborhood, a Jewish all girl school. I left 24 1 home at or about 6:20 in the morning. And because 2 of traffic conditions in the Chicago metropolitan 3 area, I did not arrive to the school until about 4 8:45 a.m., which is about two and a half hours. 5 Now just so everyone knows, that time, based on my 6 experience, I can travel to Springfield in two and 7 a half hours. 8 Q. If you arrived at 8:45, that was 45 9 minutes after your normal start time? 10 A. Yes. 11 Q. How was that 45 minutes handled? 12 A. I used 30 minutes or 45 minutes or so of 13 personal or vacation time. I would have to check 14 my records, check the time sheet, but I had to use 15 benefit time for that day. 16 Q. And if your work at the school in 17 Rogers Park was done before 4:00 o'clock -- let's 18 say you finished at 3:00? 19 A. Right, on that day I finished at 20 approximately 3:20. Prior to leaving, I called 21 management -- meaning Jeff Aranowski or Patrick 22 Murphy -- and told them I was done with the visit 23 and I requested to be released from work that day. 24 They responded, yes. So I left at about 3:20, and 25 1 I arrived home at about 5:00 p.m. 2 Q. Between 3:20 and 4:00 o'clock, how was 3 that handled? 4 A. It was released, so I was done with work 5 per management approval. 6 Q. So they released you from work? 7 A. Right, but I had to do that. If I hadn't 8 done that -- I mean, management, they could have in 9 their own discretion said, okay, you have to take 10 benefit time, but they chose not to because that's 11 explaining the policy that came out on February 17, 12 2010, and they also distributed yesterday via 13 E-mail -- 14 MS. ALFERINK: I'm going to object. That's not 15 introduced into evidence. If Ms. Leahy is 16 attempting to introduce that into evidence -- 17 ARBITRATOR BENN: Do we need to explore 18 something that happened yesterday? 19 MS. LEAHY: No. 20 ARBITRATOR BENN: Forget it. 21 THE WITNESS: Okay. 22 MS. LEAHY: If I can have a moment. 23 ARBITRATOR BENN: Yes. 24 26 1 BY MS. LEAHY: 2 Q. If I can go back for just a second, 3 Mr. Lee, so I'm sure I understand this. You were 4 approved for personal or vacation time for the 5 first 45 minutes of that April 14th visit, is that 6 correct? 7 A. Yes. 8 Q. I think we all know, but maybe we ought to 9 have it as part of the record. How do you accrue 10 vacation time and personal days? 11 A. Well, that's based on the contract, so 12 many days a month or something. I mean, I don't 13 know the exact language. I mean, it's in the 14 contract. 15 Q. So you earn vacation days and you earn 16 personal days? 17 A. Oh, yes. 18 Q. Mr. Lee, do you have any idea how much 19 vacation or personal time you've had to use in 20 traveling related to work since say February of 21 2010? 22 A. Not off the top of my head. I can 23 document it though because I have it documented. 24 I don't know the exact number right now. 27 1 Q. What is the furthest school that you had 2 to visit from ISBE's headquarters? 3 A. A school in East Dubuque, Illinois in 4 terms of miles is the farthest. That's what you 5 mean? 6 Q. Yes. 7 A. Yes. 8 MS. LEAHY: I have nothing further. 9 ARBITRATOR BENN: Cross? 10 CROSS-EXAMINATION 11 BY MS. ALFERINK: 12 Q. Mr. Lee, in addition to adjusted time, 13 meaning what we all call comp time, you also can 14 adjust your workday; is that correct? 15 A. I also can't adjust -- I can't? 16 Q. You can. 17 A. I can, yes, based on that E-mail that went 18 out on the 17th of February. 19 Q. Well, based on the clear contract 20 language, you can adjust your workday; correct? 21 It has nothing to do with the E-mail from 22 Mr. Aranowski? 23 A. I'm misunderstanding what you're saying. 24 You're saying based on the clear contract 28 1 language? 2 Q. Does the contract allow you to adjust your 3 workday? Let me tell you what I mean by adjust 4 your workday. Maybe there's some confusion there. 5 You normally work 8:00 to 4:00, correct? 6 A. Yeah, when I'm in the office. 7 Q. If you wanted to go for or apply for an 8 adjusted workday, you can call your manager and say 9 tomorrow is it okay if I worked from 9:00 to 5:00, 10 and that can be approved as an adjusted workday. 11 Is that accurate? 12 A. I don't know, because I've never done 13 that. I mean, I've never called management and 14 asked can I work from 9:00 to 5:00. I do know 15 based on a procedure that they established in 16 February of last year, if I can do a visit at the 17 school start or because of the travel distance or 18 whatever if I want to start at 8:30, then I can do 19 that. I mean, that's what I know based on their 20 policy on February 17th. 21 Q. So you can adjust your workday -- meaning 22 if you don't think you're going to get to a school 23 until 8:30, you can ask for your work hours that 24 day to be 8:30 to 4:30; isn't that correct? 29 1 A. Depending on the situation, but it's not a 2 typical thing. Normally, I have to get there at 3 8:00 o'clock every day. 4 Q. But if you are not going to get there at 5 8:00 o'clock, you can ask for an adjusted day; yes 6 or no? 7 A. No. 8 Q. You cannot? 9 A. It depends on the situation. There's been 10 times, like I did some visits last year, where for 11 whatever reason I couldn't E-mail. I wanted to get 12 there at 9:00. Something I did recently, I can't 13 recall but I asked approval from Jeff to start that 14 day at 8:30. 15 Q. For the record, Jeff is Mr. Aranowski; 16 correct? 17 A. Yes. 18 Q. Just listen and focus on my question. 19 If you want to adjust your workday, you can -- 20 regardless of whether or not you have -- you can 21 call Jeff or Patrick -- Mr. Murphy -- and ask for 22 approval for an adjusted workday; yes? 23 A. Yes, I believe in some instances the 24 records will show some E-mails that I have had 30 1 with him. 2 Q. And on several occasions you have called 3 Jeff, and he has approved you to work an adjusted 4 workday; correct? 5 A. On several occasions when I call Jeff it's 6 to -- like in the past, to say, I know I'll be late 7 at the school, I mean arriving to the school. I've 8 called, and then I have had to take benefit time, 9 but that's different from adjusted work time. 10 Again, like the situation last year in April -- 11 Q. Just answer my questions okay. When we're 12 done, Ms. Leahy does have an opportunity to come 13 back and follow up with anything. 14 Do you recall going to -- this is 15 January 13, 2011 -- do you recall going to advanced 16 quality assurance review time in Oak Brook? 17 A. Yes. 18 Q. Do you recall requesting and being 19 approved for an adjusted workday that day? 20 A. Yes. I mean, I used some time. I think 21 that the training started -- was that a full day 22 event? I think it was, January 13th. 23 Q. So you did? 24 A. Yeah, because I think on that date the 31 1 training started at 8:30, so based on the 2 procedures in that February 17th E-mail, I did 3 E-mail him in advance saying that since this 4 training starts at the times from 8:30 to 3:00, I 5 request approval for that or whatever. I sent him 6 an E-mail, and he approved it. 7 Q. Do you need me to go through all these 8 dates, or would you agree with me that there is 9 more than one occasion where you requested an 10 adjusted workday and got an adjusted workday? 11 A. You can probably go through the dates. 12 Q. Okay. Let's talk about May 27th of 2010. 13 A. Yes. 14 Q. I'm probably going to get this 15 pronunciation incorrect -- Yeshiva Shearis Yisroel 16 School in Chicago, do you recall requesting and 17 being approved for an adjusted schedule on that 18 day? 19 A. Yes. I believe their hours were such -- 20 I think they were from 9:00 to 5:00 or something. 21 I know I have it all documented in E-mails, and you 22 probably have that too. 23 Q. On May 26th or May 27th, Yeshiva Shearis 24 Yisroel School in Chicago, do you recall seeking 32 1 approval and have an approval granted to work an 2 adjusted workday that day? 3 A. Yes, because of the hours of the school. 4 Q. St. Mary Margaret, in Algonquin, do you 5 recall requested for an adjusted workday and being 6 approved for an adjusted workday? 7 A. Yes. I believe on that day I had to take 8 some vacation time, I think. Now I have to look at 9 my records too. 10 ARBITRATOR BENN: Is it disputed by the Union 11 that they adjust the workday? 12 MS. LEAHY: No, but it just means that they 13 changed the time you start, the time you would be 14 there, and the time you would finish. It does not 15 include travel time. If that's what you mean. I 16 think there's a problem with adjusted workday and 17 adjusted time. One means comp time, and as I 18 understand it, all Ms. Alferink is going through 19 right now is you change your start and your finish 20 time of the day. Is that true? 21 MS. ALFERINK: Okay. The Union is conceding 22 that, so I can move on. 23 BY MS. ALFERINK: 24 Q. On many of these occasions, if not all, 33 1 you have called Jeff and/or Patrick to be released 2 early; is that correct? 3 A. I don't want to agree to something. I 4 don't know what you're saying. There's been many 5 times that if I'm done with the school day before 6 4:00, I will contact them -- meaning Jeff or 7 Patrick, but typically Jeff -- and ask to be 8 released. They have released me. That's been 9 after that policy of February 17, 2010. 10 Q. How many school visits did you do last 11 fiscal year? 12 A. I do not know the exact number. 13 Q. Would it be closer to 5 or closer to 500? 14 A. No, it wouldn't be closer to 500. It's 15 more than 5 but fewer than 500. 16 Q. Since these are all non-public schools, I 17 assume that they operate on an August to June 18 calendar? 19 A. Yes. 20 Q. How many office visits do you do in a 21 given day? 22 A. Last year? 23 Q. Yes. 24 A. On average, this isn't an accurate number 34 1 but I believe it was probably one a week. I think 2 I did about 40. I know my first visits were in 3 October 2009 for fiscal year '10 for what I 4 recall. The last visits were the Jewish schools 5 toward the Memorial Day of 2010. 6 Q. You have not visited any public schools 7 since November of '09, is that accurate? 8 A. November of '09? I do not recall. Again, 9 for the most part the field visits or going to the 10 non-public schools. 11 Q. When is the last time you did a school 12 visit in Champaign? 13 A. I haven't, but I believe -- 14 Q. You haven't. Okay. You've answered my 15 question. These 40 visits that you are doing or 16 that you did -- 17 A. Approximately. 18 Q. Are they one-day visits? 19 A. No, some were two-day visits. 20 Q. Was there ever an occasion where you 21 visited more than one school in a given day? 22 A. I do not recall off the top of my head, 23 no, ma'am. I do not recall. 24 Q. You live in Naperville, is that correct? 35 1 A. That's correct. 2 Q. You have lived in Naperville since at 3 least 2009, correct? 4 A. That is correct. 5 Q. You take the Metra train when coming into 6 work at the Thompson Center? 7 A. Yeah. Whenever I come in here, I take the 8 Metra. That's the only way I go. 9 Q. What time do you leave your house in the 10 morning when you're coming into the Thompson 11 Center? 12 A. Between 6:00 and 6:15 every day. 13 Q. Then you start your day at 8:00? 14 A. Yes, I'm here by 8:00. 15 Q. In the morning you have an hour and 45 16 minutes to a two-hour commute? 17 A. Yes. 18 Q. At the end of your workday when you're 19 here at the Thompson Center, you take the Metra 20 train home, I assume? 21 A. That is correct. 22 Q. What time do you arrive home? 23 A. Assuming there are no train delays and all 24 that, between 5:45 and 6:00 p.m. 36 1 Q. So you have again about an hour and 45 2 minutes to a two-hour commute at the end of the 3 workday when you're leaving the Thompson Center, 4 correct? 5 A. Yes. 6 Q. When you're traveling to school visits, 7 you often leave from home and take your personal 8 vehicle; correct? 9 A. Oh, yeah. I always do that. I mean, let 10 me just clarify. There was one visit that I used 11 the train because that was a visit like two years 12 ago. It was downtown like off of Wells Street so I 13 took the Metra train and used public transportation 14 or a cab. On other visits I use my vehicle to 15 manage because of practical reasons, scheduling and 16 all that. 17 Q. When you're driving your personal vehicle 18 to these schools, you're not picking up a coworker 19 and brining a coworker there, correct? 20 A. No. Since I've been doing this, no. Even 21 when I was doing other field jobs, I do not recall 22 doing that. 23 Q. I want to talk to you about the comp time 24 or the adjusted work time you were earning before 37 1 November of 2009. I'm going to give you a 2 hypothetical situation. Okay? 3 A. Okay. 4 Q. You live in Naperville. Let's say you 5 were traveling to a school that would take you 25 6 minutes to get there from your home. You would 7 leave your house at 7:30 to get there by 8:00 8 o'clock? 9 A. I may, or I may leave at 7:00 to get there 10 at 7:30. It depends on what I want to accomplish 11 that day, a lot of variables. 12 Q. In either scenario -- in my scenario or in 13 your scenario -- you're leaving your home later 14 than you're leaving your home if you're coming down 15 to the Thompson Center? 16 A. In that scenario, 25 minutes away or so. 17 Q. Yes, correct. 18 A. Yes. 19 Q. And prior to November of 2009, if you were 20 leaving your home at in my scenario at 7:30 to get 21 there at 8:00 o'clock, you would be earning 22 adjusted time from 7:30 to 8:00; is that accurate? 23 A. Yes, if it was preapproved and I did all 24 that. 38 1 Q. Correct, with all the other circumstances 2 and assuming all the other contract requirements. 3 A. Uh-huh. 4 Q. Tell me a time in November of 2009 where 5 you received comp time for traveling when you left 6 your home before you would have left your home 7 coming into the Thompson Center. 8 A. I would have to look at some of my 9 documentation if you have some. You may have 10 some. Your question is leaving before, so before 11 leaving at 6:15? 12 Q. Correct. 13 A. I don't know off the top of my head. I 14 would have to look at some documentation that I 15 have. 16 MS. ALFERINK: I'm going to show you what I'm 17 going to mark as Employer No. 1. 18 (Whereupon, Employer 19 Exhibit No. 1 was marked for 20 identification.) 21 MS. ALFERINK: Ms. Leahy, this was in a fax to 22 you yesterday. Andrea, maybe you can assist her if 23 she doesn't know what I'm talking about. 24 MS. LEAHY: I have it. I need to know what 39 1 part of the packet is being marked. 2 MS. ALFERINK: It is going to be the entirety 3 of his adjusted work schedule approvals. 4 MS. LEAHY: The entire packet, is that 5 correct? 6 MS. ALFERINK: It's 13 pages. You were faxed 7 more than the 13 pages. Ms. Wingo, can you assist 8 her? 9 MS. LEAHY: Could you identify it in terms of 10 the page at the top, the fax numbered page? 11 MS. ALFERINK: I did not fax it to you, 12 Ms. Leahy. Ms. Wingo did. Ms. Wingo, can you 13 assist? 14 MS. LEAHY: It doesn't have the fax numbered 15 page at the top. Several bear the page number 16 handwritten in the right-hand corner, the number 17 one. I'm going to have to go through the entire 18 thing. 19 ARBITRATOR BENN: Let's go off the record. 20 (Discussion off the record.) 21 BY MS. ALFERINK: 22 Q. Mr. Lee, I've handed you what's been 23 marked Exhibit 1. While we were off the record, 24 you had an opportunity to start looking through 40 1 those documents; is that correct? 2 A. Yes. 3 Q. I'm going to ask you a question about them 4 as a whole. Those are the forms that an employee 5 such as yourself would fill out if you were seeking 6 adjusted time, is that accurate? 7 A. Prior to November 24th? 8 Q. The form has not changed, correct? 9 A. I don't know because I haven't submitted 10 it. 11 Q. But that was the form that you would have 12 submitted prior to November of '09 when you wanted 13 to get adjusted time, correct? 14 A. Yes. 15 Q. Those are copies of the forms that you 16 submitted to either Mr. Aranowski or Mr. Murphy to 17 obtain adjusted time, correct? 18 A. Yes. 19 MS. LEAHY: Objection. I don't see any form in 20 what I'm looking at. I see an E-mail to and from 21 Patrick Lee. 22 MS. WINGO: Are you talking about the E-mail. 23 MS. LEAHY: No, the adjusted time request, the 24 form that Jeff signed. I'm sorry that was not in 41 1 what I had identified. 2 ARBITRATOR BENN: Let's go off the record 3 again. 4 (A short break was taken.) 5 BY MS. ALFERINK: 6 Q. Mr. Lee, you have in front of you what has 7 been marked as Employer's No. 1, correct? 8 A. Yes. 9 Q. And you have had a chance to look through 10 it, and those are the adjusted work forms you 11 submitted in 2009 to your supervisor; correct? 12 A. Yes. 13 Q. Each of these dates was approved by your 14 supervisor, correct? 15 A. Yes. 16 Q. You used this time, correct? 17 A. Yes. I believe so, yeah. 18 Q. I don't need to go through all of them 19 with you, but I do want to go through some just so 20 we get on the record what we're looking at. The 21 first page is dated on the top October 6th but it's 22 talking about travel October 19th, 2009. Are you 23 on the same page as me? 24 A. Yes, the first. 42 1 Q. Okay. On this date you traveled to and 2 from Chicago for a non-public school visit, is that 3 correct? 4 A. Yes. 5 Q. And you left your house at 6:15 a.m. and 6 arrived at the school at 8:00 a.m., correct? 7 A. No, I would have to look at my travel 8 voucher to know exactly what time I arrived at the 9 school. This indicates what time I left home. 10 Q. Okay. Fair enough. You left your house 11 at 6:15 a.m.? 12 A. Right. 13 Q. And that is the same time or later than 14 you would leaving your house if you were to be 15 coming to the Thompson Center, correct? 16 A. It's about the same time. Like I said, I 17 leave between 6:00 and 6:15. It's like the same 18 time. 19 Q. You were traveling at least from 20 4:00 o'clock until 5:30 that evening, correct? 21 A. Yes, because this is the time in this 22 instance. 5:30 p.m. should be the time that's on 23 my travel voucher when I came home, right. 24 Q. So in this instance, you got home 15 or 30 43 1 minutes earlier than you would have had you been 2 working at the Thompson Center that day; is that 3 correct? 4 A. On this particular day, yes. 5 Q. This is the kind of time that you think 6 you should be getting comp time for, is that 7 accurate? 8 A. Yes. All these exhibits are times that 9 would indicate how I should get comp time. Again, 10 looking at the time -- 11 Q. There's not a question. Again, I don't 12 want to go through all of these with you because 13 that would be very tedious. Are there any times in 14 here in which you left your house according to your 15 forms before 6:00 a.m.? 16 A. No. I've never -- my recollection is I've 17 never left before 6:00 a.m. to go to do a school 18 visit. 19 Q. I just want to have you look at the fifth 20 page. 21 A. What is the date. 22 Q. The date of the travel is going to be 23 October 22nd. 24 A. Right. 44 1 Q. This is for a visit you did in Lisle. 2 You projected hours that you later changed. So the 3 updated hours is what I'm going to ask you about. 4 You were traveling at least from 7:30 a.m. to 8:00 5 a.m., indicating that you left your house at 6 7:30 a.m.; correct? 7 A. I believe so. Without looking at my 8 travel voucher I don't want to state the exact 9 time. I would want to see my travel voucher for 10 that date. 11 Q. Did you prepare this document? 12 A. Yes. 13 Q. Do you have any reason to believe that you 14 would have put a false time on this document? 15 A. No, but my thing is I want to verify 16 because this has been a while. I just want to make 17 sure what I'm telling you is truthful and 18 accurate. I don't have any reason to lie to you, 19 but without looking at the documentation I'm not 20 going to tell you that it's something that is not. 21 Q. You applied for and were granted comp 22 time on the premise that you left your house at 23 7:30 a.m., correct? 24 A. Yes. That's what that showed, yeah. 45 1 Q. You earned comp time under the premise 2 that you returned home at 4:30 that day, is that 3 accurate? 4 A. Right. 5 Q. So you actually were out of your house 6 much less than you would have been had you come 7 into the Thompson Center on that day, correct? 8 A. On that particular day. 9 Q. This is another instance that had you been 10 going to the same school tomorrow in Lisle, you 11 think that you would be entitled to comp time from 12 7:30 to 8:00 and from 4:00 to 4:30; is that 13 accurate? 14 A. If I left before 8:00 and arrived home 15 after 4:00. 16 Q. How much comp time do you get from 6:00 17 a.m. to 8:00 a.m. when you're coming into the 18 Thompson Center? 19 A. I do not receive any comp time. 20 Q. Prior to November of '09, when you were 21 coming into the Thompson Center and you left your 22 house at 6:00 or 6:15, how much time did you get 23 from 6:00 to 8:00? 24 A. None. 46 1 Q. Did you ever file a grievance on this? 2 A. No. 3 Q. Why is that? 4 A. I wasn't on travel status when I'm coming 5 into the Chicago office. Therefore, that travel 6 time is on me. 7 Q. So anytime you're on travel status, you 8 believe you're entitled to comp time for any time 9 above and beyond 37 and a half hours per week? 10 A. Yeah, that's what I believe based on what 11 I've done in the past, which this documentation 12 supports that. 13 Q. How are paid? 14 A. When you say how, what do you mean? 15 Q. Are you paid by how are? 16 A. I just receive a salary. That's something 17 for management. I just receive a salary. That's 18 all I know. That's my answer. I receive a yearly 19 salary paid twice a month. 20 Q. Each paycheck your check is the same, 21 correct? 22 A. Yes. 23 Q. So you would agree with me that you're a 24 salaried employee as opposed to an hourly employee, 47 1 correct? 2 A. I would say I'm a salaried employee. 3 Q. Now I'm going to give you another 4 hypothetical. You're at a school visit tomorrow, 5 and you're actually at the school from 8:00 a.m. to 6 6:00 p.m. you would still be entitled to adjusted 7 time from 4:00 p.m. to 6:00 p.m., correct? 8 A. No. 9 Q. That's not correct? 10 A. Not unless I put in that I knew with 11 absolute certainty I was going to be there that 12 late and had the foresight to fill out paperwork 13 like this, because with the policy that came into 14 effect that was no more. 15 Q. What you're saying is if you don't follow 16 the contract and get preapproval, you wouldn't be 17 eligible for it. Let's say the principal tells you 18 I need you here from 8:00 a.m. to 6:00 p.m. because 19 we have a parent meeting later in the day and I 20 need you to be here and it will be over at 6:00. 21 So if you put it in and get it preapproved by 22 either Mr. Aranowski or Mr. Murphy, you would be 23 entitled to comp time from 4:00 to 6:00 p.m.; 24 correct? 48 1 A. If I knew in advance with certainty that 2 I would be at the site after my, quote unquote, 3 4:00 o'clock end time. 4 Q. So in another way, if you followed the way 5 the contract requires you to get preapproval, you 6 would be entitled to it? 7 A. I'm not saying that. That's what you're 8 saying. I'm not going to say that. 9 Q. I want to talk to you about the visits you 10 did in East Dubuque. 11 A. It was a visit, not visits. 12 Q. You did one visit, but it lasted multiple 13 days; is that accurate? 14 A. Yes. 15 Q. How far away was East Dubuque from your 16 home? 17 A. Approximately, 180 -- again, it's all 18 reflected in the travel voucher. 19 Q. You were allowed to adjust your workday on 20 the two days that that visit was encompassing, 21 correct? 22 A. I was allowed to adjust what time to get 23 at the school because of the distance. 24 Q. Yes. 49 1 A. Yes. 2 Q. You were allowed to travel on work time on 3 the way back at the conclusion of the second day's 4 visit, correct? 5 A. Yes, because of the distance, the travel 6 distance. That's the determining factor. 7 Q. And the visits were April 15th and 8 April 16th of last year, is that accurate? 9 A. Thursday and Friday, yes. 10 Q. And on April 15th you asked for and 11 obtained permission to leave your residence at 12 6:30 a.m. to arrive at the school by 10:30; is that 13 accurate? 14 A. Yes. 15 Q. You left the school that day at 4:00 p.m., 16 correct? 17 A. Yes. What's documented in my travel 18 voucher is what I did. 19 Q. Where did you stay, do you recall? 20 A. A hotel in Dubuque, Iowa, right across the 21 Mississippi River. 22 Q. About how long did it take you to get from 23 the school to the hotel? 24 A. About 10 or 15 minutes at the most. I 50 1 don't remember the exact time. 2 Q. On the second day you arrived at the 3 school at 8:00 a.m., correct? 4 A. Yes. 5 Q. You worked on site until 12:00, is that 6 accurate? 7 A. Whatever is documented in my travel 8 vouchers is the time I left the school. I don't 9 know the exact time off the top of my head because 10 I don't have my travel voucher in front of me. 11 Q. You asked for and were granted permission 12 to arrive home by 4:00 o'clock on that Friday, is 13 that accurate? 14 A. Yes, because of the distance. 15 Q. So that's the furthest away you've had to 16 go since November of '09, is that accurate? 17 A. Yes, I would say so. 18 Q. On this trip, which is the furthest you've 19 ever had to go, the only time you had to travel 20 outside of your normal workday was 6:30 to 8:00 on 21 the first day; correct? 22 A. Yes. 23 Q. That was later than you would have left 24 your home had you been coming into the Thompson 51 1 Center? 2 A. On that particular day. 3 Q. Okay. Between Mr. Murphy's E-mail of 4 November of '09 and Mr. Aranowski's E-mail of 5 February of 2010 -- which is when you're saying 6 there's a new travel policy in place, correct? 7 A. Yes. 8 Q. Were you allowed to arrive at the school 9 after the start of your normal workday? 10 A. After November 24th? 11 Q. Yes. 12 A. To February? Yes, that's what I did. 13 Q. And you were allowed to do that? 14 A. Yeah, that's what I did. Something 15 changed on that. 16 Q. Something happened in February to change 17 it, correct? 18 A. Yeah, early February. 19 MS. ALFERINK: If I can just have one moment. 20 I don't have any further questions for you. 21 ARBITRATOR BENN: Redirect? 22 REDIRECT EXAMINATION 23 BY MS. LEAHY: 24 Q. Mr. Lee, am I correct that the change in 52 1 comp time and travel did not take place for you 2 until February of 2010? 3 A. You're correct in stating that. What 4 happened after November of 2009, I traveled -- 5 understanding that there was no more adjusted work 6 time, I traveled and I worked my seven and a half 7 or more hours per day when I would do a school 8 visit. You want me to give an example? 9 Q. Well, let me back up a little bit. 10 Between November and February, did you have to be 11 at your school at your start time of 8:30 -- I 12 mean, 8:00 o'clock? 13 A. After that November 24th, no, I don't 14 know. I would get to the school like say at 8:00 15 or 8:30, depending on travel conditions and all 16 that, but I would leave at home to ensure that I 17 would get to school not too late. That's reflected 18 in my travel vouchers. 19 Q. Then what happened in February, because 20 you referred to some clarification in February? 21 A. Yes. What happened was on February 9th 22 I received a verbal counseling, a discipline, from 23 Patrick Murphy for allegedly not following that 24 directive. 53 1 Q. What was the directive? 2 A. The alleged directive was I was supposed 3 to let them know if I left the school before 4 4:00 o'clock. 5 Q. Apparently in April of 2010, when you 6 went to East Dubuque, did you receive any comp time 7 for the two days you spent at the school in 8 East Dubuque? 9 A. No. 10 Q. Were you allowed to include travel in your 11 normal seven-and-a-half hour workday? 12 A. In that, I believe so. In that instance I 13 was because of that travel distance. 14 Q. Now have you ever seen anything in writing 15 that would indicate that you're allowed to travel 16 during your normal work hours? 17 A. Have I seen anything in writing? 18 Q. Yes, that would say if you travel this 19 many miles you're entitled to travel during your 20 workday and if it's this many miles, no, you eat 21 that time? 22 A. No, I haven't seen anything. I don't 23 recall in all my years here. I just traveled a 24 certain way. 54 1 Q. Apart from Dubuque, have you had any other 2 instance when you've been allowed to travel during 3 your seven-and-a-half-hour workday? 4 A. Yes, that was all the time prior to 5 receiving that verbal counseling. That memo came 6 out on February 17, 2010. So all my travel that I 7 did in this division except for certain instances 8 was, you know, I left home at a certain time and 9 arrived home at a certain time, and travel was 10 considered part of my workday. If I can give an 11 example -- if I left at 7:00 a.m. or 6:45 a.m. and 12 I arrived home at 3:45, I was okay because I worked 13 9 hours that day including travel time. 14 Q. Were you then compensated for the hour and 15 a half above your normal seven-and-a-half-hour 16 workday? 17 A. No, I chose not to nitpick that. 18 Q. Prior to November when you were on travel 19 status, could you travel during your normal 20 workday? 21 A. Yes. 22 Q. When Ms. Alferink questioned you about an 23 adjusted workday, does that simply mean that your 24 beginning work time on that day and your ending 55 1 work time on that day changed? 2 MS. ALFERINK: I'm going to object, leading. 3 ARBITRATOR BENN: I don't think so. Go ahead. 4 THE WITNESS: I don't understand what you're 5 saying. 6 BY MS. LEAHY: 7 Q. Ms. Alferink talked to you about an 8 adjusted workday. 9 A. Okay. 10 Q. I thought it was that normally you work 11 8:00 to 4:00, right? 12 A. Yes. Those are my work hours period. 13 After all this stuff happening, my work hours 14 period were 8:00 to 4:00. 15 Q. On occasion, with agreement of your 16 supervisor you could adjust those hours from 8:30 17 to 4:30, right? 18 A. Oh, yeah, if the situation necessitated at 19 a particular school or visit. If the assignment 20 for that day started at 8:30, then based on the 21 E-mail that came out I would communicate that with 22 Mr. Aranowski or Mr. Murphy. 23 Q. So when we talk about an adjusted workday, 24 we're not talking about comp time. We're just 56 1 talking about changing your start time and your end 2 time, right? 3 A. Oh, yeah. That is correct, ma'am, yes. 4 Q. And prior to November of 2009 you could 5 include travel in your workday, right? 6 A. Yes. I want to stress to you that it was 7 prior to that verbal that I received. 8 Q. Okay. Then you also if you worked beyond 9 seven and a half hours, you could be compensated 10 for that time through what you call their adjusted 11 time? 12 A. Yes. That was prior to November 24th, 13 2009. 14 Q. That would be translated into comp time, 15 right? 16 A. Yes, that is correct. 17 Q. If including travel you worked a 10-hour 18 day, you would receive adjusted time or comp time 19 for that over and above seven and a half hours; 20 right? 21 A. Yes. 22 MS. LEAHY: Nothing further. 23 24 57 1 RECROSS-EXAMINATION 2 BY MS. ALFERINK: 3 Q. Mr. Lee, you were allowed to travel during 4 work hours for the East Dubuque visit, correct? 5 A. Yes. 6 Q. There's also been several other occasions 7 since November of '09 where you've been allowed to 8 travel on work time, correct? 9 A. I don't recall, but you know you may have 10 some information that would help refresh my memory. 11 Q. Every time you call Mr. Aranowski to get 12 released early, you're traveling during your 13 normally scheduled workday; correct? 14 A. Right, based on the new policy that came 15 into effect, yeah. 16 Q. Is my understanding clear we have two 17 policies in effect? We have the first policy 18 according to you that was in effect in the 19 November 24th, 2009 E-mail from Patrick, correct? 20 That's what you're referring to as the first 21 policy? 22 A. Yes. 23 Q. Then we have a second policy, a new policy 24 that was in effect in February of 2010 based on an 58 1 E-mail from Mr. Aranowski; correct? 2 A. Yes. 3 Q. So there's two different policies we're 4 talking about, is that accurate? 5 A. Yes 6 MS. ALFERINK: I don't have anything else, 7 Mr. Lee. 8 ARBITRATOR BENN: Anything further? 9 MS. LEAHY: Nothing further. 10 MS. ALFERINK: At this point I would like to 11 move for introduction of Employer's Exhibit 1. 12 ARBITRATOR BENN: Any objection to Exhibit 1? 13 MS. LEAHY: No. 14 ARBITRATOR BENN: Exhibit 1 is in. 15 (Whereupon, Employer's 16 Exhibit No. 1 was received 17 in evidence.) 18 MS. LEAHY: I would like to move for the 19 admission of Union 4, his job description. 20 MS. ALFERINK: No objection. 21 ARBITRATOR BENN: Union 4 is in. 22 (Whereupon, Union 23 Exhibit No. 4 was received 24 in evidence.) 59 1 (Witness excused.) 2 ARBITRATOR BENN: So long as there is a lull 3 here and we're on the record, I want to make sure I 4 understand this. If the normal hours are 8:00 to 5 4:00, and if an employee has to do a visit and go 6 into travel status which requires them to leave 7 their home let's say at a time after they would 8 normally leave to come to work at the Thompson 9 Center, it's the Union's position that the past 10 practice was they would get adjusted time. They 11 would receive comp time for that, for example, a 12 half hour or so even though they left their house 13 after they normally would had they come downtown? 14 MS. LEAHY: That's what the practice had been. 15 ARBITRATOR BENN: That's the practice. Okay. 16 We're taking another short break here. 17 (A short break was taken.) 18 (Witness sworn.) 19 PHYLLIS JONES, 20 called as a witness herein, having been first duly 21 sworn, was examined and testified as follows: 22 DIRECT EXAMINATION 23 BY MS. LEAHY: 24 Q. State your name, please. 60 1 A. Phyllis Jones. 2 Q. And your professional address, Ms. Jones? 3 A. 100 North First, Springfield, Illinois. 4 Q. When were you born? 5 A. I was born 12-17-47. 6 Q. What is your education? 7 A. I am an RN. I have a Bachelor's Degree in 8 Management. I have a Master's Degree in Public 9 Administration. 10 Q. Where did you obtain your bachelor's 11 degree? 12 A. My bachelor'S came from UIS. 13 Q. University of -- 14 A. University of Illinois, Springfield. 15 Q. And your master's? 16 A. From the University of Illinois, 17 Springfield. 18 Q. You're currently employed at the Illinois 19 State Board of Education? 20 A. I am. 21 Q. When did you start to work for the Board? 22 A. July of 1994. 23 Q. What is your position? 24 A. I am a principal consultant in the 61 1 Division of Educator and School Development. 2 Q. How long have you been a principal 3 consultant? 4 A. Since I started work here. 5 Q. I'm showing you Union Exhibit 5 and ask if 6 you can identify this document. 7 A. This is my present P-A-R, Position Action 8 Report. It is a description of my job duties. 9 Q. Who do you report to? 10 A. I have a supervisor named Jeff Aranowski 11 out of the Chicago office, and my division 12 administrator is Patrick Murphy. 13 Q. Could you briefly tell the Arbitrator what 14 you do on a day-to-day basis. 15 A. I work specifically with colleges and 16 universities that have teacher preparation 17 programs. I am the Title II Coordinator, which is 18 the federal report about colleges and universities 19 for teacher preparation for the State of Illinois. 20 I am the NCATE coordinator for the State of 21 Illinois, which is a national accreditation body 22 for colleges and universities for teacher 23 preparation. I work with new programs, new 24 institutions, new not-for-profits that want to 62 1 train teachers. Primarily, most of my job duties 2 are around that particular issue. 3 Q. From time to time do you travel in 4 relationship to your positions? 5 A. Yes, I do. In the past it has been to do 6 accreditation visits or program visits to the 7 colleges and universities. Yearly, I go to the 8 NCATE state coordinator's workshop whereever they 9 hold it that year. 10 Q. Is there one scheduled for this year? 11 A. Yes there is, next Wednesday, Thursday and 12 Friday. 13 Q. Tell me a little bit about the workshop. 14 What is it related to? 15 A. It relates to the NCATE accreditation 16 policies. They are presently forming a partnership 17 with another accreditation body and how those 18 changes will affect the colleges and universities 19 in the State of Illinois and all over the country. 20 We are an NCATE state, and we follow their 21 standards, so it's absolutely necessary that we 22 stay up to date with everything that they do. 23 Q. So am I understanding you correctly that 24 you work with colleges and universities in regard 63 1 to their educational program for teachers to be? 2 A. Exactly. 3 Q. And that there's an organizations. You 4 said it's an accreditation organization? 5 A. Yes, it is an accreditation organization. 6 They have certain standards that these colleges and 7 universities of education have to meet. They 8 periodically assess whether or not these 9 instructions are meeting those standards. We also 10 use those for our state accreditation standards in 11 the way we judge whether or not the colleges and 12 universities that prepare teachers are doing their 13 job and if they're doing it with quality. 14 Q. You're involved in that process here for 15 the State of Illinois? 16 A. Yes, I am, for the Illinois State Board of 17 Education. 18 Q. Now you said the workshop is coming up 19 next week? 20 A. Yes, it is. 21 Q. Where is it going to be held? 22 A. In Long Beach, California. 23 Q. How often have you attended workshops 24 sponsored by this accreditation organization? 64 1 A. I believe this will be my fourth yearly 2 meeting. 3 Q. Has it been four consecutive years? 4 A. Yes. 5 Q. So if we go back to the year 2009, did you 6 attend in that year? 7 A. Yes, I did. 8 Q. Do you remember where that was? 9 A. That was in Phoenix. 10 Q. Tell me was your attendance at the seminar 11 considered part of your normal workday? 12 A. Yes, it is. 13 Q. Was travel to and from the seminar in 14 Phoenix considered a workday for you? 15 A. No, it was not. 16 Q. So tell me how that was handled? 17 A. It was handled and it is being handled 18 this year, I have to ask for benefit time to travel 19 to and from the place of the workshop. 20 Q. What do you mean by you have to ask for 21 benefit time? 22 A. I have to ask for a vacation day or 23 personal day. 24 Q. Has it always been that way? 65 1 A. Not for the full time that I've worked for 2 the agency, no. 3 Q. Can you explain to me what it was? 4 A. In the past, our travel to and from 5 schools, workshops, conferences, anything that we 6 had to do out of our own office was considered part 7 of our work time. 8 Q. So you were compensated for that? 9 A. Yes, ma'am. We were either given the time 10 to travel so that we traveled during our regular 11 workday, or we were given the comp time afterwards. 12 Q. And this year I think you said you have 13 had to request taking your own personal days? 14 A. Yes, I have. 15 Q. Was it personal or vacation days? 16 A. Vacation days. 17 Q. You've taken a vacation day. Vacation 18 days are something you earn? 19 A. Yes, ma'am. 20 Q. So that when you attend the conference 21 next week, you're going to have to take a personal 22 day of your own for travel? 23 A. Yes. I specifically asked for next 24 Tuesday to be considered a travel day on my 8:00 to 66 1 4:00 shift, but was told that that was not allowed 2 and that I had to ask for benefit time to do that 3 or else I had to be at my workstation at my normal 4 time on Tuesday. 5 Q. So you elected to take -- 6 A. A vacation day. 7 Q. I gather from what you've said that 8 attendance at the seminar has been approved for you 9 in the past and for this year? 10 A. And for this year, yes. There is quite a 11 ritual that we have to go to to get out of state 12 travel approved. 13 Q. You went through that, and this conference 14 was approved? 15 A. Yes. 16 MS. LEAHY: I have nothing further. 17 ARBITRATOR BENN: Cross? 18 CROSS-EXAMINATION 19 BY MS. ALFERINK: 20 Q. Ms. Jones, if at any point you can't hear 21 me because we're on speaker phone, please let me 22 know. I have some questions about the trip that 23 you're going on next week. The conference is on 24 Wednesday, Thursday and Friday; is that accurate? 67 1 A. That is correct. 2 Q. You have decided because of personal 3 reasons to travel to Long Beach on Saturday, is 4 that accurate? 5 A. That's correct. 6 Q. You put in the request to your supervisor, 7 Mr. Aranowski, even though you were traveling on 8 Saturday to be coded as T, travel, for the Tuesday; 9 is that correct? 10 A. Correct. 11 Q. That was denied? 12 A. That's correct. 13 Q. He told you that if you actually did 14 travel to Long Beach on Tuesday, the 17th, you 15 could travel on agency time; is that correct? 16 A. No, he did not. 17 Q. Did he tell you that you could not? 18 A. May I look at what he E-mailed me? 19 MS. ALFERINK: If you want to mark it as an 20 exhibit. 21 Ms. Leahy, is this being marked as an 22 exhibit? 23 MS. LEAHY: It has not been. Do you have the 24 E-mail? 68 1 MS. ALFERINK: Are you asking me if I have the 2 E-mail? 3 MS. LEAHY: Yes. 4 MS. ALFERINK: I have seen some of the 5 E-mails. I don't know which one you have. They 6 went back and forth a few times. 7 MS. LEAHY: I have one that is from Aranowski 8 dated April 27th, 2011 and a response. 9 MS. ALFERINK: Are you going to mark it as an 10 exhibit? If so, I think you should just fax us 11 what you're looking at to make sure that we're 12 looking at the same one. 13 MS. LEAHY: You want that faxed up to you? 14 MS. ALFERINK: If you are planning on using it, 15 yes. 16 MS. LEAHY: Okay. I just need to put them in 17 order. 18 ARBITRATOR BENN: Let's go off. 19 (A short break was taken.) 20 MS. LEAHY: We'll mark this as Union 7. 21 ARBITRATOR BENN: We're back on the record. 22 This is Union Exhibit 7. 23 24 69 1 (Whereupon, Union 2 Exhibit No. 7 was marked for 3 identification.) 4 BY MS. LEAHY: 5 Q. Are those the E-mails that you referred to 6 before our break going back and forth between you 7 and Mr. Aranowski about travel time to get to your 8 conference next week? 9 MS. ALFERINK: Maybe I'm missing something. 10 We're on cross right now with Ms. Jones. 11 MS. LEAHY: I thought you wanted her to 12 identify the exhibit. 13 ARBITRATOR BENN: She just did. That's fine. 14 MS. ALFERINK: I appreciate you, Ms. Leahy, 15 helping out with that and getting that identified 16 on the record. 17 BY MS. ALFERINK: 18 Q. Ms. Jones, I am going to show you an 19 E-mail. At the top is an E-mail from Jeff to you 20 sent Wednesday, April 27 at 2:19 p.m. Do you see 21 where I'm looking? 22 A. On the 21st? 23 Q. On the 27th, at 2:19 p.m. 24 A. Yes. 70 1 Q. If you look down, it looks as if Jeff has 2 separated each day out? 3 A. Yes. 4 Q. When you look at May 17th, the day that 5 you're actually traveling, he says I see you are 6 planning to travel to Long Beach on May 14th, 7 therefore you will not be traveling on May 17th. 8 Accordingly, you are expected to be at work that 9 day or request benefit time. Is that the gist of 10 what he's saying? 11 A. That is what he said. 12 Q. You understand that if you were to travel 13 on May 17th, the day before the conference, you 14 could do it on agency time; correct? 15 A. No, because according to the E-mail from 16 him on April 25th at 10:42, he stated that adjusted 17 work time requests may only be honored for hours 18 worked in access of 7-1/2 hours in a day or 37-1/2 19 hours in a week. If time spent traveling is not 20 hours of work, travel time cannot apply to the 21 accrual of adjusted work time. 22 Q. I'm not talking about accruing adjusted 23 time. Let me just tell you this, Ms. Jones. You 24 can, according to this E-mail, travel on May 17th. 71 1 Is that what you want to do instead of traveling on 2 May 14th? 3 A. If I say that I'm traveling on May 17, it 4 is appropriate for me to have my 8:00 to 4:00 shift 5 counted as travel time. 6 Q. The way these arbitrations work is that I 7 ask the questions and you can respond to them. 8 MS. LEAHY: Objection to this being 9 argumentative. 10 ARBITRATOR BENN: Let's just have a question 11 and answer. 12 BY MS. ALFERINK: 13 Q. Ms. Jones, do you want to travel on 14 May 17th instead of May 14th and travel during the 15 workday on May 17th? 16 A. That is what I originally asked for. 17 Q. Show me where you originally asked for 18 that. 19 A. It is on Page 4. It is from all the way 20 back down to the bottom of April 21st. It's the 21 only thing on the page, it says the intake trip, 22 5-16 vacation, 5-17 travel to Long Beach. 23 Q. I'm sorry, I don't know where you're 24 looking, Ms. Jones. 72 1 A. It was faxed, correct? 2 Q. I see it now. Isn't it correct that you 3 hadn't planned on traveling to Long Beach that 4 day. You had planned to travel on the 14th, 5 because you had had a conversation with Mr. Murphy 6 months before asking Mr. Murphy if could you travel 7 on the weekend; is that accurate? 8 A. No. I hadn't made plans to travel on the 9 weekend. I had always planned to be traveling on 10 the 17th. I still intend to be traveling on the 11 17th. 12 Q. Then why in your E-mails to Jeff do you 13 say you're traveling on the 14th? 14 A. Because he asked me what day I was 15 leaving. I told him we were leaving on Saturday. 16 We are driving. 17 Q. So you're traveling on the weekend? 18 A. We are driving in that direction on the 19 weekend. I will still be traveling on the 17th. 20 Q. So you have chosen to drive as opposed to 21 take an airplane, correct? 22 A. That's correct. 23 Q. If you were to take an airplane, you could 24 depart on the 17th and travel during your work 73 1 hours? 2 A. Exactly. That was why I had originally 3 asked to travel to Long Beach on the 17th. 4 Q. Do you wish at this point to revise your 5 request and actually travel to Long Beach on the 6 17th? 7 A. I am perfectly okay with my original 8 request, which was to have a vacation day on the 9 16th, to travel to Long Beach on the 17th, to have 10 the three workshop days, and then the workshop ends 11 on Friday somewhere around noon so there is time in 12 there that could also be counted as travel. 13 Q. Okay. But all the stuff you're saying now 14 about traveling and driving for several days is 15 nothing that you told Mr. Aranowski? 16 A. No, not until he asked. 17 Q. But when he asked, you said that you were 18 traveling on the 14th. That's the entirety of the 19 information you gave Mr. Aranowski when he asked 20 you when you were traveling? 21 A. He said what day are you planning to 22 leave. I told him the 14th. He did not ask me how 23 I was getting there or anything else. My original 24 request was to travel on the 17th. He told me I 74 1 could not have travel time on the 17th. 2 Q. You understand though that you do have the 3 right to take an airplane on the 17th and travel 4 there and you're choosing not to do that? 5 A. I have always understood that. 6 MS. ALFERINK: Okay. I don't have anything 7 further, Ms. Jones. Thank you. 8 ARBITRATOR BENN: Anything else? 9 MS. LEAHY: No, your Honor. 10 (Witness excused.) 11 MS. LEAHY: I would move for the admission of 12 Union 5 and Union 7. 13 ARBITRATOR BENN: Any objections? 14 MS. ALFERINK: Let me just double-check to make 15 sure it's the one I have. I don't have any 16 objection. 17 ARBITRATOR BENN: Let's show Union 5 and 7 are 18 received. 19 (Whereupon, Union 20 Exhibit Nos. 5 & 7 are 21 received in evidence.) 22 23 24 75 1 (Witness sworn.) 2 JULIE FLENTJE, 3 called as a witness herein, having been first duly 4 sworn, was examined and testified as follows: 5 DIRECT EXAMINATION 6 BY MS. LEAHY: 7 Q. State your name, please. 8 A. Julie Flentje. 9 Q. Would you spell your last name for the 10 court reporter. 11 A. F-l-e-n-t-j-e. 12 Q. Your professional address? 13 A. 100 North First Street, Springfield 14 Illinois, 62777. 15 Q. When were you born? 16 A. 11-4-1961. 17 Q. What is your educational background? 18 A. High school. 19 Q. You're currently employed at the Illinois 20 State Board of Education? 21 A. Yes. 22 Q. What is your title? 23 A. Commodity consultant. 24 Q. What do you do in that job? 76 1 A. My main goal is to order all the food 2 commodities for all the schools in Illinois except 3 for Chicago Public Schools. I order them from the 4 USDA. Each month I allocate out to the schools, 5 and during the summer I allocate out to the summer 6 feeding program. 7 Q. Who do you report to? 8 A. Christine Schmidt. 9 Q. What division do you work in? 10 A. Nutrition programs. 11 Q. Now from time to time do you have to 12 travel for work? 13 A. Yes. 14 Q. And what types of occasions cause you to 15 travel? 16 A. Recently, we had a USDA training because 17 we have a new computer system for placing orders, 18 so it was mandatory that we go to that. Just 19 recently I went to a conference called ACDA. That 20 stands for American Commodity Distribution 21 Association conference. It's an annual conference. 22 Q. When was the mandatory conference? 23 A. The mandatory was in January. 24 Q. Where was that located? 77 1 A. It was in Dallas. 2 Q. AND the other conference that you went to? 3 A. It was in New Orleans. 4 Q. When did you begin to work at I-S-B-A? 5 A. 1986. 6 Q. And you've worked continuously for the 7 Board since 1986. Have you experienced any change 8 by the Board in terms of travel? 9 A. Yes. Previously, if we traveled to -- 10 like the conference I just went to, it's always on 11 a weekend. It begins on a Saturday, Sunday, that 12 kind of thing. In the past when I've gone on a 13 Saturday, you've been compensated for your time on 14 Saturday traveling to the conference. 15 Q. What about the last time you went? 16 A. This last time I went, which I just got 17 back last week, we traveled on a Saturday. We 18 didn't get any time for that Saturday travel, and 19 we got back late on Tuesday night. We didn't get 20 time for the time our day ended on Tuesday until 21 the time we got home. 22 Q. The day that you came home from 23 New Orleans, what time did you -- let me back up a 24 little bit. What's your normal workday? 78 1 A. My schedule is a little different. Monday 2 through Wednesday, I work 7:00 to 4:00 with a half 3 hour lunch. Thursdays, I work 7:00 to 3:45 with a 4 half hour lunch. Fridays, I work 7:00 to 10:45 5 with no lunch. 6 Q. Am I correct that the contract, the 7 Collective Bargaining Agreement, provides for 8 flexible time? 9 A. Yes. 10 Q. And your schedule is sort of flexible, 11 right? 12 A. Yes. 13 Q. So you went to the conference in 14 New Orleans. You traveled on a Saturday to get 15 there? 16 A. Right. 17 Q. And did you receive any pay whatsoever for 18 that day of travel? 19 A. No. 20 Q. In prior years you had? 21 A. Yes. 22 ARBITRATOR: Did you hear an answer? I didn't 23 hear it. In prior years you had? 24 THE WITNESS: Yes. 79 1 BY MS. LEAHY: 2 Q. What day did you travel back? 3 A. It would have been on Tuesday, May 3rd. 4 We got into St. Louis -- I think our night was due 5 in at 4:10, and it was right around that time. By 6 the time we got to the car and got home, it was 7 9:30 at night. I'm sorry, it left there at 4:10. 8 Q. Left New Orleans? 9 A. Yes. 10 Q. Were you compensated in any way for your 11 travel time on the normal end of your workday? 12 A. No. 13 Q. Had you been in the past? 14 A. Yes. 15 MS. LEAHY: Nothing further. 16 ARBITRATOR BENN: Cross? 17 CROSS-EXAMINATION 18 BY MS. ALFERINK: 19 Q. Could you please tell me how you say your 20 last name, Julie. 21 A. It's Flentje. 22 Q. You indicated earlier that there was a 23 change by the Board with regard to travel. Is that 24 what you said? 80 1 A. Yes. 2 Q. You're only speaking about your personal 3 situation though, correct? 4 A. Yes. 5 Q. You have no idea what any agencywide 6 policies are that have been implemented, correct? 7 A. Well, I got a policy written by my 8 division administrator. 9 Q. That was just to your division? 10 A. Correct. 11 Q. Your division administrator is Christine 12 Schmidt, correct? She reports to Linda Tomlinson, 13 is that correct? 14 A. Yes. 15 Q. Does Patrick Murphy also report to Linda 16 Tomlinson? 17 A. I think so. I don't know. 18 Q. Do you know how many other divisions 19 Dr. Tomlinson has reporting to her? 20 A. No, I do not. 21 Q. Have you ever been a member of management 22 in ISBE? 23 A. No. 24 Q. With respect to the travel to New Orleans, 81 1 did you ask to adjust your workweek? 2 A. Yes. 3 Q. Do you have that in writing? 4 A. I have an adjusted workweek because we 5 were also gone on Sunday, so there is an adjusted 6 day for Sunday. 7 Q. So you did get paid for Sunday in your 8 estimation? 9 A. Yes. 10 Q. Did you put in an adjusted workweek to 11 accommodate that Saturday? 12 A. No. We had a meeting prior to going, and 13 my division administrator said that we didn't get 14 any time for Saturday so -- 15 Q. Isn't it accurate, in fact, that your 16 division administrator told you at that meeting to 17 put your request in writing, and you never put the 18 request in writing? 19 A. For the Saturday? 20 Q. For the Saturday. 21 A. No, she didn't tell us to. She told us we 22 weren't going to get anything for it, so there was 23 no need to put it in writing. 24 Q. In addition to the travel that you've 82 1 talked about, the out-of-state travel, you also 2 travel around the state doing visits; is that 3 accurate? 4 A. I do workshops and visits once in a while. 5 Q. When you're traveling to those workshops, 6 do you often travel during agency time? 7 A. Yes. 8 MS. ALFERINK: I don't have anything further. 9 Thank you. 10 MS. LEAHY: Nothing further. 11 ARBITRATOR BENN: Thank you, ma'am. 12 (Witness excused.) 13 MS. LEAHY: We'll get another witness here. 14 ARBITRATOR BENN: Is this a long witness? 15 MS. LEAHY: No, this is a short one. 16 (Witness sworn.) 17 JAMES P. MATHIS, 18 called as a witness herein, having been first duly 19 sworn, was examined and testified as follows: 20 DIRECT EXAMINATION 21 BY MS. LEAHY: 22 Q. State your name, please. 23 A. My name is James P. Mathis. 24 Q. And your professional address, Mr. Mathis? 83 1 A. 101 North First Street, Springfield, 2 Illinois. 3 Q. When were you born? 4 A. July 9th, '48. 5 Q. What is your educational background? 6 A. BA in Finance, University of Iowa. 7 Q. What year? 8 A. '72. 9 Q. You're currently employed at the Illinois 10 Board of Education? 11 A. Yes, I am. 12 Q. When did you begin to work for the Board? 13 A. 7-1-95. 14 Q. And your current position? 15 A. Principal consultant. 16 Q. What are your duties briefly in that job? 17 A. Briefly, I handle General State Aid, 4.6 18 Billion Program. I also just picked up 19 supplemental General State Aid, which is part of 20 that program. 21 Q. What do you actually do in terms of 22 schools and education? 23 A. Basically, I answer a lot of questions 24 with the superintendent regarding attendance 84 1 issues, General State Aid calculations, adjustment 2 entries, training on the calculation of General 3 State Aid, things associated with TIF and 4 enterprise zones. 5 Q. I'm showing you Union Exhibit 6. Can you 6 identify that document? 7 A. Yes, this is an evaluation. No, I'm 8 sorry, it's a P-A-R. 9 Q. P-A-R stands for? 10 A. Position Action Report. 11 Q. Is that your P-A-R? 12 A. Yes. It has my name on it, correct. 13 Q. Is that your job description? 14 A. Yes, except for the new addition I just 15 got when Rich Loman retired. 16 Q. Mr. Mathis, in performing your duties for 17 the Illinois State Board of Education, say in the 18 last six months, have you had occasion to travel? 19 A. No. 20 Q. Do you earn personal days and vacation 21 days as an employee of the State Board? 22 A. Yes, I do. 23 Q. Do you know the basis on which you earn 24 vacation days? 85 1 A. It's based on length of time. 2 Q. Length of time of what? 3 A. Service with the agency. 4 Q. And at the current time how are you 5 earning vacation days? 6 A. I believe it's about 20 now for me, 7 because they have an add-on for each day after 10 8 years, I believe. 9 Q. Personal days? 10 A. Personal days are three a year, unless the 11 prior calendar year you had less than three sick 12 days and then you get an extra day, which is four. 13 Q. As an employee, you're earning those 14 vacation days and those personal days? 15 A. Yes, I am. 16 Q. And therefore your use with the approval 17 of the actual days off by your supervisor, right? 18 A. Yes. 19 MS. LEAHY: I have nothing further. 20 ARBITRATOR BENN: Cross? 21 CROSS-EXAMINATION 22 BY MS. ALFERINK: 23 Q. How many personal days do you say that we 24 get? 86 1 A. Personal days for me anyway it's normally 2 three. If you use less than three sick days in a 3 year, I believe you get an extra one day. I 4 believe at the beginning of this current fiscal 5 year I started out with four. 6 MS. ALFERINK: If I could just have one moment. 7 Ms. Leahy, could you show Mr. Mathis Joint 8 Exhibit 2, please. 9 BY MS. ALFERINK: 10 Q. Mr. Mathis, you have been handed what's 11 been marked as Joint Exhibit 2. This is a copy of 12 the Union contract that was in effect from 2005 to 13 2009. If you can look at Article 15 -- just let me 14 know when you find Article 15. 15 A. Got it. 16 Q. How many personal days does it say you're 17 entitled to under Section 1? 18 A. Four. 19 Q. You're the former IFSOE president, 20 correct? 21 A. Correct. 22 Q. You were the president when this contract 23 was in effect? 24 A. Correct. 87 1 Q. You're not sure how many personal days you 2 got? 3 A. I told you I got four. 4 Q. You told me normally you would get three, 5 but because of not taking sick days you got four. 6 Isn't that what you said? 7 A. It must have been a prior contract, yes. 8 That's what I said. 9 Q. It must have been prior to 2005? 10 A. It may have been. It may have been during 11 negotiations too we talked about various things. 12 You know, I don't have the contract memorized. 13 Q. You didn't know what you were going to be 14 asked today? 15 A. I didn't know I was going to be asked that 16 question. 17 Q. What did you think you were going to be 18 asked? 19 MS. LEAHY: Well, this raises a very 20 interesting issue, Mr. Benn. 21 MS. ALFERINK: I'll withdraw the question. 22 ARBITRATOR BENN: Thank you. 23 BY MS. ALFERINK: 24 Q. Mr. Mathis, you also indicated how many 88 1 vacation days you personally are earning; is that 2 accurate? 3 A. Well, I was just guessing. Like I said, I 4 know that I've got plenty of vacation on the 5 books. I know how much personal time I've got on 6 the books. Again, I don't know. 7 Q. So you don't have any idea how much 8 vacation time you accrue in a year? 9 A. I check it like once a year. 10 Q. Okay. Let's just assume that you knew 11 actually how much vacation time you were accruing 12 in the year, that wouldn't be the same throughout 13 the agency; correct? Everybody earns on a 14 different schedule or everybody earns on the same 15 schedule but earns difference amounts? 16 A. It's a possibility, yes. 17 Q. It's a possibility, or it's accurate? 18 A. It's accurate. 19 MS. ALFERINK: If I could just have one 20 moment. We don't have anything else, Mr. Mathis. 21 Thank you. 22 MS. LEAHY: Nothing further. 23 ARBITRATOR BENN: Thank you, sir. 24 ARBITRATOR BENN: Any further witnesses from 89 1 the Union? 2 MS. LEAHY: I would move for admission of Union 3 Exhibit 6. 4 ARBITRATOR BENN: Any objection? 5 MS. ALFERINK: We have no objection. 6 ARBITRATOR BENN: Exhibit 6 is in. 7 (Whereupon, Union Exhibit 8 No. 6 was marked and 9 received in evidence.) 10 ARBITRATOR BENN: The Union rests? 11 MS. LEAHY: That's right. 12 ARBITRATOR BENN: We've got two witnesses on 13 the board side if I understand correctly? 14 MS. ALFERINK: I think Mr. Mathis could be 15 excused. 16 ARBITRATOR BENN: Mr. Mathis, there's a 17 sequestration in effect, so you're excused. 18 (Witness excused.) 19 ARBITRATOR BENN: I'm told we have two 20 witnesses from the Board which shouldn't take very 21 long on direct? 22 MS. ALFERINK: That's correct. 23 ARBITRATOR BENN: Why don't we take a brief 24 lunch break, and then we'll come back and finish 90 1 the case. 2 MS. ALFERINK: Right now it's 11:55. What time 3 do we want to meet back? 4 MS. LEAHY: 45 minutes. 5 ARBITRATOR BENN: 1:00 o'clock, give or take. 6 MS. LEAHY: Okay. 7 (A short break was taken.) 8 (Witness sworn.) 9 10 11 12 13 PATRICK MURPHY, 14 called as a witness herein, having been first duly 15 sworn, was examined and testified as follows: 16 DIRECT EXAMINATION 17 BY MS. ALFERINK: 18 Q. For the record, what is your full name? 19 A. Patrick Murphy. 20 ARBITRATOR BENN: Would you speak louder, 21 please. 22 THE WITNESS: Patrick Murphy. 23 BY MS. ALFERINK: 24 Q. What is your educational background? 91 1 A. A Bachelor's Degree in Elementary 2 Education from Southern Illinois and a Master's 3 from University of Illinois in Springfield. 4 Q. Where are you currently employed? 5 A. Illinois State Board of Education. 6 Q. What is your job title at ISBE? 7 A. Division Administrator for Educator and 8 School Development. 9 Q. How long have you been the Division 10 Administrator for Educator and School Development? 11 A. Since August of 2007. 12 Q. Who was your immediate supervisor? 13 MS. LEAHY: I'm sorry, I could not get the 14 year. I got August, but not the rest of it. 15 THE WITNESS: August of 2007. 16 BY MS. ALFERINK: 17 Q. Who is your immediate supervisor? 18 A. Dr. Linda Tomlinson, assistant 19 superintendent. She reports to the superintendent. 20 Q. Do you know how many other divisions 21 Dr. Tomlinson supervises? 22 A. Three. 23 Q. Three other divisions or three total 24 divisions? 92 1 A. Three total divisions, sorry. 2 Q. Before becoming the DA in August of 2007, 3 were you employed by ISBE in any other capacities? 4 A. Yes. I was a principal consultant first 5 hired in November of 1999. I had that title 6 through approximately May of 2004 when I was 7 promoted to division supervisor. Later that year, 8 I was promoted to division administrator. I left 9 the agency in June of 2005, where I spent two years 10 working for Chicago Public Schools and then I came 11 back in August of 2007 to my current position. 12 Q. Can you briefly describe what your 13 division is responsible for? 14 A. Yes. We have oversight with higher 15 education. That's teacher preparation programs 16 that prepare teachers for licensure. We have 17 oversight with educator certificate renewal, and we 18 have compliance and oversight with public school 19 and non-public school compliance and private 20 business vocational schools. As part of that 21 compliance with public and non-public schools, the 22 staff will visit schools to monitor for compliance. 23 Q. How many employees do you currently 24 supervise? 93 1 A. 20. 2 Q. How many employees did you supervise in 3 November of 2009? 4 A. 26. 5 Q. How many of the employees that you were 6 supervising in November of 2009 were IFSOE members? 7 A. 16. 8 Q. Of those 16 employees that you were 9 supervising in November of '09, how many of them 10 regularly traveled? 11 A. Very few staff regularly traveled. I 12 think we had four that I would say regularly 13 traveled. 14 Q. I'm going to show you what has been marked 15 as Joint Exhibit 1. I ask if you recognize it. Do 16 you recognize the document that you've been handed? 17 A. Yes, I do. 18 Q. What do you recognize that document to be? 19 A. A grievance filed by IFSOE stating 20 language that I had sent regarding use of adjusted 21 work time. 22 Q. The language cited, how did you send that 23 to your staff? 24 A. I sent that to my staff in an E-mail. 94 1 Q. What was the purpose of sending this 2 E-mail? 3 A. To notify staff that while I'd been 4 inappropriately providing adjusted work time for 5 time spent not working, specifically time that they 6 were traveling, and to let them know that this 7 practice of mine would no longer continue. 8 Q. How was this error brought to your 9 attention? 10 A. I was involved in a meeting with Mr. Don 11 Evans, director of HR, Dr. Tomlinson, my district 12 superintendent, and Kristin Alferink. And in that 13 meeting Mr. Evans alerted me to the fact that he 14 had been alerted that I had been incorrectly 15 providing adjusted work time for staff for time 16 they were spending not working, rather time spent 17 traveling, and to correct the issue. 18 Q. Why had you been allowing staff to 19 accumulate adjusted time for hours spent traveling. 20 A. I remember when I was a principal 21 consultant that I had received similar time for 22 compensation time that I had spent traveling. So 23 when I came back to my management position, it was 24 something that I was used to, something that I 95 1 had received as a consultant. Therefore, I 2 expected that must be the same practice to 3 continue, so I just continued to do it as I was 4 familiar with it. 5 Q. Did you have any conversations with other 6 managers regarding traveling and adjusted time? 7 A. I did. I talked to a few others really in 8 the center divisions, because we would have some 9 meetings occasionally. Occasionally, the topic 10 might come up about different things. I recall, in 11 general, conversations about staff, if they had 12 travel and how to handle it. I seem to recall 13 having conflicting responses. And since there 14 wasn't any clear direction I was doing anything 15 wrong or opposite what somebody else maybe was or 16 wasn't doing, I just continued with the practice 17 that I was doing. 18 Q. You said that you had meetings with your 19 center. What does center mean? 20 A. Dr. Linda Tomlinson is the assistant 21 superintendent for School Support Services for all 22 Schools. Yes, there's schools in there twice. 23 Q. There's three divisions that she's over. 24 You're the DA of one of them? 96 1 A. That's correct. 2 Q. Who are the other DA's? 3 A. Linda Jamali and Christine Schmidt. 4 Q. I'm going to go back to the exhibit that I 5 showed you earlier. The E-mail that was contained 6 in there, was that E-mail reviewed by HR before 7 being sent out? 8 A. No, it was not. 9 Q. Did Dr. Tomlinson review it before you 10 sent it out? 11 A. No, she did not. 12 Q. Did anybody review it before you sent it 13 out? 14 A. I might have had my division supervisor, 15 Jeff Aranowski, who reports to me take a look at it 16 and review it before I sent it out. He would have 17 been the only one. 18 Q. Did you ever look at the contract to 19 determine how adjusted time should be handled? 20 A. Not prior to November of 2009. 21 MS. ALFERINK: I'm going to show you what I'm 22 going to mark as Employer No. 2. Mary Lee, this is 23 in the packet of documents I sent you just so you 24 could find it. You could start looking for it. 97 1 It's a memo from Mr. Murphy dated January 25th to 2 his division. 3 MS. LEAHY: Is it originally what you sent over 4 to me, or what you faxed to me yesterday? 5 MS. ALFERINK: It was in the original 6 documents. If you want to look for that, and let 7 me know when you've located it. 8 MS. LEAHY: You sent it out when? 9 MS. ALFERINK: January 25th. 10 MS. LEAHY: Do you know if it's before or after 11 the marked up contract proposals? 12 MS. ALFERINK: It's after that. The contract 13 proposals are at the beginning of the packet, and 14 then everything else is at the end. 15 MS. LEAHY: Is it before or after the 16 transcript? 17 MS. ALFERINK: I don't know. 18 MS. LEAHY: This is like three inches so -- is 19 it one from January 25th, 2010? 20 MS. ALFERINK: Right. 21 MS. LEAHY: Okay. And this is? 22 MS. ALFERINK: This is Employer No. 2. 23 24 98 1 (Whereupon, Employer 2 Exhibit No. 2 was marked 3 for identification.) 4 BY MS. ALFERINK: 5 Q. I show you what I have marked as Employer 6 Exhibit No. 2. Do you recognize that document? 7 A. Yes, I do. 8 Q. What do you recognize that document to be? 9 A. A memorandum that I sent out to my 10 division regarding policies and procedures. 11 Q. What prompted you to send that memo out to 12 your division? 13 A. The year before I had sent out a similar 14 memo to my division. I felt that it was timely to 15 send that out again. We had some staff turnover, 16 and I wanted to make sure that all staff were 17 current with the current policies and procedures 18 for the division. 19 Q. Did you include anything in the memo 20 regarding adjusted time? 21 A. I did. 22 Q. What did you include? 23 A. That they would not be eligible to receive 24 adjusted time for hours spent not working. In 99 1 other words, they wouldn't -- 2 MS. LEAHY: I'm sorry. Again, I didn't hear 3 the last part. 4 THE WITNESS: Just that it confirmed what I had 5 stated before, that they would not be eligible for 6 adjusted work time for hours spent not working, and 7 it further clarified what both IFSOE and the other 8 Union AFSCME contract requirements were. 9 MS. ALFERINK: I don't have any further 10 questions. 11 ARBITRATOR BENN: Do you want this evidence? 12 MS. ALFERINK: I do. I move to admit 13 Employer'S Exhibit No. 2 into evidence. 14 ARBITRATOR BENN: Any objection? 15 MS. LEAHY: No. 16 ARBITRATOR BENN: Exhibit 2 is in. 17 (Whereupon, Employer's 18 Exhibit No. 2 was received 19 in evidence.) 20 ARBITRATOR BENN: Cross? 21 CROSS-EXAMINATION 22 BY MS. LEAHY: 23 Q. Mr. Murphy, did I understand you correctly 24 that while you were a principal consultant at ISBE 100 1 you did receive adjusted time or comp time for 2 travel? 3 A. Yes. 4 Q. And for what period of time did you work 5 here as a principal consultant? 6 A. From November of 1999 through May of 2004. 7 Q. And what was your job when you were a 8 principal consultant? 9 A. I worked for two different divisions. The 10 first division was Secondary Education, and the 11 second division was Certification. 12 Q. And you received the adjusted time for 13 travel time beyond your normal workday in both 14 divisions? 15 A. I think so. I definitely recall in one 16 for sure. 17 Q. Which division was that? 18 A. Certification. 19 Q. Do those divisions still exist? 20 A. Certification does. The other one is a 21 different title now. I believe it's called Career 22 and Technical Education. 23 Q. And in your position as a principal 24 consultant, can you briefly tell me what your 101 1 duties were? 2 A. Duties in both divisions? 3 Q. Yeah. Let's take them both. 4 A. In Secondary Education, I was working 5 with, as I recall, career academies that high 6 schools had embedded their programs, such as an 7 industrial arts area or a nursing area. I was 8 working with those career areas. I believe they 9 were called academies and providing assistance with 10 them. I was only in that position for less than a 11 year, so I don't recall much else from that one. 12 The other division, when it was Certification, I 13 was a transcript evaluator. So I was evaluating 14 transcripts of instate and out-of-state applicants 15 as they wanted teaching certificates or 16 endorsements and would also provide training to the 17 regional office of education and other districts on 18 areas of certification. 19 Q. While you were working as a principal 20 consultant from November of '99 to 2004, were you 21 allowed to travel during your workday? 22 A. Yes. 23 Q. And were you compensated at your regular 24 rate of pay for the time you traveled during your 102 1 regular workday? 2 A. I believe so, yes. 3 Q. And what was your regular schedule of work 4 in 1999 to 2004? 5 A. I don't recall my exact hours. 6 Q. Was it seven and a half hours a day? 7 A. Yes. 8 Q. And you could travel during that time if 9 you had to for your work assignment, right? 10 A. Yes. 11 Q. And if you went above seven and a half 12 hours when you were traveling due to your work 13 assignment, you received adjusted time; right? 14 A. Yes. 15 Q. And adjusted time is comparable to comp 16 time, right? 17 A. I believe so, yes. 18 Q. Now in 2004, you became the division -- 19 was it superintendent? 20 A. Division supervisor. 21 Q. Supervisor, I'm sorry. Did you have 22 occasion to travel during that period of time? 23 A. Yes, I did. 24 Q. And was the policy the same as I've just 103 1 gone over when you were principal consultant? 2 A. I was no longer a principal consultant at 3 that time. 4 Q. No, I understand that, but you testified 5 that you could travel during your normal 6 seven-and-a-half-hour workday, and that if you went 7 over seven and a half hours you would receive comp 8 time; right? 9 A. As a principal consultant, yes, that's 10 correct. 11 Q. Was it correct when you became the 12 division supervisor? 13 A. Again, I don't understand the question. 14 Q. When you were the division supervisor, did 15 you have to travel related to work? 16 A. Yes, I did. 17 Q. Were you allowed to travel during your 18 normal seven-and-a-half-hour workday? 19 A. Yes, I was. 20 Q. If you went over seven and a half hours 21 when you were traveling related to work, did you 22 receive comp time for the hours over seven and a 23 half? 24 A. I was management at that time so I don't 104 1 believe so. 2 Q. Would the same be true as administrator? 3 A. That's correct. 4 Q. So in one sense part of the travel policy 5 you had experienced as a principal consultant 6 continued when you became the supervisor, that 7 being allowed to work during your normal workday? 8 A. Could you clarify that? 9 Q. All right. I thought you just told me 10 that after you became the supervisor you could 11 travel during your normal seven-and-a-half-hour 12 workday? 13 A. Yes, I could. 14 Q. And I assume you got paid for it just as 15 you would if you weren't traveling, right? 16 A. Yes. 17 Q. Now when you became the division 18 supervisor, who did you supervise, what employee 19 category? 20 A. I had principal consultants, and I had 21 staff from the AFSCME Union. So program specialist 22 I believe is their title. 23 Q. After you became the division supervisor, 24 did the principal consultants operate in regard to 105 1 travel the same way you had when you were a 2 principal consultant? 3 A. Yes. 4 Q. And you became a division administrator in 5 2004? 6 A. Yes. 7 Q. You were supervisor for less than a year, 8 right? 9 A. Correct. 10 Q. After you became division administrator, 11 who reported to you? 12 A. The same staff that I had as a supervisor. 13 Q. And did the travel policy continue to be 14 the same for the principal consultants as it had 15 been when you were a principal consultant? 16 A. I'm trying to recall. Staff in that 17 division rarely traveled anywhere. It's been a 18 while. 19 Q. Then you left, went to Chicago, came back 20 in 2007 again as a division administrator? 21 A. That's correct. 22 Q. What divisions were you over? 23 A. The same one I am today, Educator and 24 School Development. 106 1 Q. When you came back as administrator, you 2 supervised principal consultants; right? 3 A. Yes. 4 Q. From time to time they traveled, right? 5 A. Yes. 6 Q. And up until November of 2009, you 7 continued the same policy you had experienced when 8 you were a principal consultant, right, with regard 9 to travel? 10 A. Yes. 11 Q. Now Mr. Murphy, I must tell you I'm a 12 little bit confused. Do you know Patrick Lee? 13 A. Yes, I do. 14 Q. And in regard to Joint Exhibit No. 1, no 15 time spent traveling can go toward comp time 16 anymore; is that correct? 17 A. Yes. 18 Q. Do you know his normal hourly shift per 19 day? 20 A. He works seven and a half hours a day. 21 Q. And according to your E-mail contained in 22 Joint Exhibit 1, travel time is not considered work 23 time; is that correct? 24 A. Yes. 107 1 Q. Have you ever approved his working and 2 traveling during the normal workday? 3 A. Yes. 4 Q. Have you done that since November 24th, 5 2009? 6 A. Can you clarify? 7 Q. Well, Mr. Murphy, there was testimony 8 today that Mr. Lee traveled to East Dubuque 9 Illinois to do a site visit at a school and that he 10 received adjusted time for part of his travel to 11 East Dubuque. Are you familiar with that? 12 MS. ALFERINK: I'm going to object. That 13 mischaracterizes the testimony that was given by 14 Mr. Lee. He did not testify that he received 15 adjusted time. He testified that he adjusted his 16 workday. 17 BY MS. LEAHY: 18 Q. Okay. Let's go into that a little bit 19 Mr. Murphy. To adjust your workday means to change 20 your start and stop time, right? 21 A. Yes. 22 Q. It doesn't expand or contract the seven 23 and a half hours required each day, right? 24 A. Yes. 108 1 Q. And according to your November memo, 2 traveling to a school or to inspect a school, that 3 is not included in the workday; is that correct? 4 A. I don't believe you characterized it 5 correctly. 6 Q. Okay, characterize it for me. 7 A. Time that they spent traveling would no 8 longer count towards accumulated adjusted time or 9 comp time. It didn't say that they could not 10 travel during their normal workday. 11 Q. So are you testifying that all time spent 12 traveling during the seven and a half hours, they 13 can travel and be paid for it? 14 A. Staff can, with approval, travel during 15 their workday. 16 Q. If they obtain whose approval, they can 17 travel during their work, their seven and a half 18 hours, and be reimbursed just as if they weren't 19 traveling? 20 A. By their supervisor. 21 Q. Under any circumstances can they be 22 allowed adjusted time for travel since November of 23 2009? 24 A. Are you asking can they accumulate 109 1 adjusted time as in comp time for time spent 2 traveling? 3 Q. Yes. 4 A. Then the answer is no. 5 Q. If they want to be paid for those hours in 6 traveling over and above the seven and a half hours 7 per day, they have to use personal time or vacation 8 time; is that correct? 9 A. I'm not sure I'm qualified to answer about 10 being paid for the time, but if they want to travel 11 at some time outside of their work time they can 12 ask for benefit time or ask for permission to 13 adjust their workday. 14 Q. Can their workday be longer than seven and 15 a half hours? 16 A. No. 17 Q. I think you indicated that you had 18 attended meetings of staff where adjusted work time 19 came up, is that correct? 20 A. I believe what I said was that I had been 21 involved with other meetings with other managers in 22 my center. 23 Q. Was this adjusted work time for travel 24 discussed? 110 1 A. At one point, yes. It had come up in a 2 conversation casually, yes. 3 Q. When was that? 4 A. I don't recall the dates. 5 Q. Can you give me a season and year? 6 A. No, I'm afraid I can't give you that. 7 Q. Would it have been before 2009? 8 A. Yes, it would have been. 9 Q. After that came up in casual conversation, 10 you continued with the adjusted time policy that 11 you'd experienced when you were a principal 12 consultant; right? 13 A. That's correct. 14 Q. As far as the E-mail contained in Joint 15 Exhibit 1, did you talk with anybody about the 16 content of the E-mail prior to drafting it? 17 A. No. Other than, as I said, I would have 18 had my division supervisor review it before it went 19 out, so he and I had talked about it. 20 Q. Well, I thought you testified that you 21 were in a meeting with Evans, Kristin Alferink and 22 Tomlinson? 23 A. That's correct. 24 Q. When was that meeting? 111 1 A. A period of time right before the E-mail 2 went out, but I don't recall the specific date. 3 Q. Was it in November? 4 A. I don't recall the exact date. 5 Q. What was said by each of the people in 6 that meeting? 7 MS. ALFERINK: Objection, hearsay. 8 ARBITRATOR BENN: No, these are agents. Go 9 ahead. 10 THE WITNESS: As I recall, Mr. Evans was the 11 one that brought to my attention that it had been 12 brought to his attention that I was incorrectly 13 giving approval for adjusted work time for staff 14 spent traveling, which was in conflict with the 15 contract, and that I should correct that and notify 16 my staff of my error. Mr. Evans and I were the 17 ones having a conversation. The others were just 18 present. 19 Q. So Ms. Alferink and Ms. Tomlinson didn't 20 say anything? 21 A. Not that I recall. 22 Q. Did Mr. Evans show you the contract? 23 A. I don't recall specifically. 24 Q. What about generally? 112 1 A. Again, I don't recall that we actually 2 pulled the contract out other than he just alerted 3 me to the issue that had been brought to his 4 attention. 5 Q. I'm sorry, I didn't get the last part of 6 that, something about attention? 7 A. Again, I don't recall that the contract 8 was specifically brought up, other than he and I 9 discussed the topic of awarding or approving staff 10 adjusted work time for time spent traveling which 11 was not working and in contrast with the contract. 12 That was the topic of the conversation. I don't 13 recall the actual contract. 14 Q. So he told you that the policy that you 15 were administering and you yourself had experienced 16 since 1999 was a violation of the contract? 17 A. He brought to my attention that it was in 18 conflict with the contract. 19 Q. Did he tell you what section of the 20 contract? 21 A. He may have. 22 Q. But you don't remember? 23 A. I don't remember the exact specifics of 24 that. It's been a little while. 113 1 Q. I gather during the meeting you didn't 2 look at the contract, right? 3 MS. ALFERINK: Objection, he's been asked and 4 answered this. He said three times now that he 5 does not recall if he was shown the contract. 6 BY MS. LEAHY: 7 Q. After you left the meeting, Mr. Murphy, 8 did you read the contract? 9 A. Yes, I did. 10 Q. Did you arrive at the same conclusion as 11 Mr. Evans, that what you had experienced as a 12 principal consultant and what you had administered 13 when you became the division administrator was in 14 conflict with the contract? 15 A. Yes, I did. 16 Q. What section? 17 A. Again, I don't have the specific section 18 memorized offhand. 19 MS. LEAHY: Could I ask that he be shown Joint 20 Exhibit 2. 21 BY MS. LEAHY: 22 Q. Can you tell me what section you believe 23 is in conflict with the policy you had experienced 24 as a principal consultant and that you then 114 1 administered when you became supervisor and 2 administrator? 3 A. I believe Article 5, Section 2, which 4 discusses the normal scheduled workday that 5 consists of seven and one half hours was something 6 I definitely reviewed. 7 Q. By the way, Mr. Murphy, had you ever read 8 the contract before the meeting in November of 9 2009? 10 A. Yes, I had read the contract. 11 Q. And you didn't conclude that your policy 12 you'd experienced and were administering was in 13 conflict with it then, did you? 14 A. That section didn't particularly catch my 15 attention when I had reviewed it before, no. I 16 would also have looked at Article 5, Section 3, 17 dealing with the workweek in that hours normally 18 scheduled -- so again in Article 5 is where I would 19 have been looking. 20 Q. By changing the scheduled workday in 21 Section 3 of Article 5, that meant changing the 22 starting hour and the ending hour but not the seven 23 and a half hours; correct? 24 A. Yes, I think I got your question right. 115 1 Q. You said I think that the policy on travel 2 up until November of 2009 -- you said it had come 3 up in casual conversation. Who was present when it 4 came up? 5 A. Again, the other managers in my center. 6 Q. Did any other managers indicate they were 7 administering adjusted time for travel above and 8 beyond seven and a half hours a day in the same way 9 that you were? 10 A. All I recall is that in the conversation 11 it wasn't clear that there was consistency in how 12 it was being administered. I didn't get a sense 13 that my approval at the time was in conflict with 14 anything occurring, so I had no reason to 15 specifically look at it or change it. 16 Q. So this was in a staff meeting of division 17 administrators? 18 A. As managers we find ourselves in -- I 19 don't know if it was a specific meeting. We find 20 ourselves from time to time and have conversations 21 when we're together. I just remember different 22 topics coming up. This one was one of those that I 23 remember talking about, and again hearing 24 information that seemed a little conflicting 116 1 between the other managers didn't give me reason to 2 believe that mine was in error, so I just continued 3 doing what I was doing. 4 Q. Was Ms. Tomlinson present at that meeting? 5 A. No, I don't think so. She might have been 6 at some, but I don't recall any specific one 7 meeting. 8 Q. During the meeting with Evans and Alferink 9 and Tomlinson in which your practice regarding 10 travel was discussed, did you indicate how long 11 this had been in effect? 12 A. I don't recall that the length of time it 13 had been going on was at issue. It was that I had 14 approved it at some point in time since I had gone 15 back into management, and it needed to be 16 corrected. I don't recall that we talked about a 17 specific length of time or how long it had been 18 occurring. 19 Q. But you were a manager in '04 and '05, 20 right? 21 A. I was back then, yes. 22 Q. Then from '07 to that point in November of 23 '09, right? 24 A. That's correct. 117 1 Q. Was there any study done to determine the 2 impact that this would have on employees who 3 traveled as part of their work assignment? 4 MS. ALFERINK: Objection. This is outside the 5 scope of Mr. Murphy's knowledge. He can testify as 6 to what he knows. 7 MS. LEAHY: That's all he can testify to, I 8 agree. 9 ARBITRATOR BENN: Don't guess -- only if you 10 know. 11 THE WITNESS: I have no knowledge. 12 BY MS. LEAHY: 13 Q. Do you know if any study was done in terms 14 of the effect of your policy and productivity? 15 A. I have no knowledge of any study being 16 done. 17 Q. Any being done in regard to the financial 18 impact either on the State Board or on the 19 employees? 20 A. Again, I have no knowledge of that. 21 Q. You had approved adjusted time, right? 22 A. Yes, I had. 23 Q. Prior to November of 2009? 24 A. Yes. 118 1 Q. Did you have any -- I don't want to say 2 gut reaction -- that this would impact some of your 3 employees to a great extent? 4 A. I don't recall having that reaction. 5 Q. Did anyone in that meeting with Tomlinson 6 and Alferink and Evans talk about the possible 7 impact that this would have on employees who 8 traveled as part of their work assignment? 9 A. No, not that I recall. 10 Q. Did you ever go back and look at the 11 amount of adjusted time that had been given to the 12 employees in your division for travel that extended 13 their workday beyond seven and a half hours? 14 A. No, I did not. 15 Q. Would you agree with me that some 16 employees in your division travel a few times a 17 year job-related? 18 A. I would agree that I have staff in my 19 division who do travel a few times a year. 20 Q. I think you testified that you had four 21 that regularly traveled, right? 22 A. Yes. 23 Q. After your November meeting, did you make 24 any inquiry of the other division managers as to 119 1 how they were handling travel hours over and above 2 the seven-and-a-half-hour day? 3 A. No, I did not. 4 Q. Mr. Murphy, can you tell me how travel 5 time to a conference is handled? 6 A. Can you be more specific? 7 Q. Well, supposing one of your employees 8 wants to go to a conference in New Orleans. Are 9 they allowed to travel to New Orleans during a 10 normal workday schedule? 11 A. Hypothetically, yes. 12 Q. And if their travel day runs over seven 13 and a half hours, are they compensated in any way 14 for the hours over the seven and a half hours? 15 MS. ALFERINK: I'm going to object. Mr. Murphy 16 is not in charge of compensating the employees. 17 He's the division administrator and has nothing to 18 do with the payment of employees. 19 ARBITRATOR BENN: Do you want to respond to 20 that? 21 MS. LEAHY: Well, he's indicated that the 22 E-mail allowed for travel time within the normal 23 seven-and-a-half-hour workday. I want to know if 24 the travel time exceeds that, how is it handled. I 120 1 didn't mean that he makes out the paycheck. 2 ARBITRATOR BENN: Can you answer that? 3 THE WITNESS: That staff my travel outside of 4 their day, but travel will not be counted towards 5 the accrual of adjusted work time. 6 BY MS. LEAHY: 7 Q. So they do the travel on their own or draw 8 down on personal or vacation time, right? 9 A. We would look at each individual case in 10 the merits and the details of each individual case 11 to determine what was appropriate. They have a few 12 options to them as to how they could travel, 13 depending on where they're traveling, what they're 14 going for, how long it's going to take. We would 15 look at all those details. 16 Q. That's what I'm trying to figure out. I 17 had read Joint Exhibit 1 and a couple of other 18 memos that went out as indicating that travel time 19 outside the seven-and-a-half-hour workday simply 20 would not -- you wouldn't receive anything for it. 21 Now you're saying there's some exceptions? 22 A. No, I'm not saying there's exceptions. 23 Q. Then why would you review the whole 24 situation? 121 1 A. I would need to know what the person is 2 traveling for, have I assigned them, what's the 3 need. You know, I don't know why I'm assigning 4 someone or why someone is traveling. I think I've 5 made clear that the time they've spent traveling 6 will not be accumulating towards an adjusted 7 workday or comp time. 8 Q. So if due to flight schedules it takes 10 9 hours to get to a conference you have approved, 10 they will only be compensated for seven and a half 11 hours on that particular day; right? 12 A. Again, I think there's some details 13 missing, but I'm not going to count any of their 14 time spent traveling towards comp time. 15 Q. Is there any other way then that -- I 16 mean, isn't that an absolute yes or no? I'm just 17 trying to figure out if there's any exception 18 whereby an employee would receive adjusted time or 19 comp time for travel above and beyond his 20 seven-and-a-half-hour workday? 21 MS. ALFERINK: I'm going to object. Mr. Murphy 22 has been asked and answered this question several 23 times. The answer has been no. 24 ARBITRATOR BENN: I'm not clear. I think it's 122 1 important that this be clarified. I'm trying to 2 keep track of what was going on before November of 3 2009 and after November of 2009. Is that what 4 you're talking about? 5 MS. LEAHY: Yes. 6 ARBITRATOR BENN: So hypothetically, if it 7 takes 12 hours to get to a conference because of 8 plane delays, travel problems, whatever, before 9 November of 2009 how was that employee treated in 10 terms of adjusted time? 11 THE WITNESS: Well, they would have submitted 12 for preapproval their time, and assuming they 13 received preapproval for that, then they might have 14 been eligible for time spent traveling that 15 accounted for adjusted work time or comp time. 16 ARBITRATOR BENN: So they would get their seven 17 and a half hours pay, right, and then they would 18 get four and a half hours adjusted time? 19 THE WITNESS: Potentially something like that. 20 ARBITRATOR BENN: That changed after November 21 of 2009? 22 THE WITNESS: Correct. 23 ARBITRATOR BENN: They would only get 7-1/2 24 hours pay if they were preapproved to travel on a 123 1 day even though it took them 12 hours to get to 2 New Orleans? 3 THE WITNESS: I'm not sure if I'm qualified to 4 talk about pay. It would be a credit for their day 5 for work, yes. Then any time spent above and 6 beyond that would not be accumulated towards any 7 adjusted work time. If the conference started at 8 8:00 a.m. and went until 9:00 p.m. and they're 9 actually at sessions, it's different than time 10 traveled. 11 ARBITRATOR BENN: Okay. I'm focusing on 12 travel. Go ahead. 13 BY MS. LEAHY: 14 Q. I thought you used the word may. That is 15 a could or couldn't be to me. 16 Is it true that if they took 12 hours to 17 get to a conference, they would receive pay for 18 7-1/2 hours and nothing for the rest of the time? 19 A. Are you talking after November of 2009? 20 Q. Yes. 21 A. And it's a normal workday or workweek? 22 Q. Yes. Let's just take the Monday as a 23 person's normal workday, and their schedule is 24 7-1/2 hours and they take 12 hours to get to their 124 1 conference? 2 A. If the entire day is spent traveling, then 3 they're expected to do that, and the time spent 4 traveling above and beyond their normal workday 5 will not count towards adjusted work time. 6 Q. Will they be compensated for that in any 7 way? 8 A. Not that I am aware of. 9 Q. But you then went on to state that if 10 the conference lasted anywhere from 8:00 a.m. to 11 9:00 p.m., they would be compensated and receive 12 adjusted work time for that? 13 A. Now we're talking about time actually 14 spent working. 15 Q. That's right, now I'm talking about the 16 conference itself? 17 A. So we would look at what time they 18 started, what time the sessions were, when there 19 was a lunch, those kinds of things, and we would 20 calculate what time they spent working. That is 21 time they would be eligible for had they received 22 preapproval for that, and then they would be 23 eligible for possibly some comp time. 24 Q. I lost you there. They might be eligible 125 1 for comp time? 2 A. Again, we're speaking hypothetically 3 here. I don't know if there were breaks in the 4 day. I don't know if there was a dinner that 5 wasn't part of the conference, or if they were 6 asked to come back to another session. I don't 7 know the details. I was just giving an example 8 that time spent at a conference working would be 9 considered different than time spent traveling to a 10 conference. 11 Q. By the way, Mr. Murphy, do you know 12 whether comp time can be taken in either actual 13 time off from work hour for hour or whether the 14 employee can be paid for comp time? 15 A. I know they're eligible for time away from 16 work. 17 MS. LEAHY: Could I have one second? 18 ARBITRATOR BENN: Of course. 19 MS. LEAHY: I have nothing further. 20 ARBITRATOR BENN: Redirect? 21 REDIRECT EXAMINATION 22 BY MS. ALFERINK: 23 Q. Mr. Murphy, in what we have marked as 24 Joint Exhibit 1, which contains the E-mail that you 126 1 sent out in November -- you know what E-mail I'm 2 talking about. You said that even though past 3 practice had allowed for it, you were no longer 4 going to continue it; is that accurate? 5 A. Yes, that's correct. 6 Q. Did you go to law school? 7 A. No, I did not. 8 Q. Did you know or do you know now that past 9 practice is a legal term? 10 A. I understand that to be the case now, yes. 11 Q. Did you know that in November of 2009? 12 A. No, I did not. 13 Q. When you had that conversation with 14 Mr. Evans and Dr. Tomlinson and myself, did any of 15 us tell you to use the term past practice? 16 A. No, they did not. 17 Q. Going back to when you were a principal 18 consultant and earning comp time, under what DAs 19 were you earning comp time? 20 A. Dennis Williams and Brad Woodruff. 21 Q. Do you have any way of knowing how the 22 travel of the other principal consultants in your 23 division was being handled? 24 A. No, I didn't. 127 1 Q. Ms. Leahy has referred to the same policy 2 being in effect when you took over from DA from 3 when you were a principal consultant. Do you have 4 any idea what the travel policy was regarding comp 5 time back when you were a principal consultant? 6 A. No, I just had my own experience. 7 Q. I want to talk to you about the meetings 8 that you had regarding adjusted work time. Were 9 there any DAs outside of your center in any of 10 those meetings? 11 A. No. 12 Q. Were these formal meetings called 13 specifically to discuss adjusted work time? 14 A. No. 15 Q. Prior to November of 2009, were you ever 16 in any formal meetings with adjusted work time 17 being the focus of the meetings? 18 A. No. 19 Q. Your IFSOE employees are salaried 20 employees, is that correct? 21 A. Yes. 22 Q. When you testified earlier that you would 23 evaluate each situation to determine whether or not 24 an employee can travel on agency time, is that the 128 1 same as whether or not you're going to evaluate to 2 see whether or not they could get comp time while 3 traveling? 4 A. No. 5 Q. Do you see that as one issue or separate 6 issues? 7 A. I see that as a separate issue. 8 MS. ALFERINK: I don't have anything further. 9 ARBITRATOR BENN: Any further questions? 10 MS. LEAHY: None. 11 ARBITRATOR BENN: I'm still confused. Let's 12 just take an example. Again, I want to compare 13 before November of 2009 and after November of 2009 14 the way you administered the adjusted time. 15 So before November of 2009, if I started 16 work -- if I worked down at the Thompson Center and 17 I started work at 8:00 o'clock I would finish at 18 4:00, right? 19 THE WITNESS: Okay, yes. 20 ARBITRATOR BENN: Just to use an example that 21 we heard, if I lived in Naperville I would leave my 22 house at 6:30 approximately -- let's use 6:30 -- to 23 get to work at 8:00 o'clock. And then when 4:00 24 o'clock came around, I would leave and I would be 129 1 home at 5:30. So for that day I received seven and 2 a half hours of compensation, right? 3 THE WITNESS: You had worked a normal day. 4 ARBITRATOR BENN: A normal day, correct? 5 THE WITNESS: Yes. 6 ARBITRATOR BENN: If I had to go to visit a 7 school -- again this is before November of 2009 -- 8 but the school visit started at 8:30 -- not 8:00 9 but 8:30 and ran until 4:30, so it was a half hour 10 off -- if I left my house at 7:30 in the morning to 11 get to that location for the school visit and I got 12 home at 5:30, am I compensated? Did I get adjusted 13 time for that travel time? 14 THE WITNESS: Prior to November 9? 15 ARBITRATOR BENN: Yes. 16 THE WITNESS: And had you submitted for 17 preapproval, it was possible that I had given that 18 to in some instances. Yes, that is correct. 19 MS. LEAHY: I'm sorry I did not get that end of 20 that answer. 21 ARBITRATOR BENN: He said, yes, in some 22 instances they would have gotten it. 23 And that would have been even though I'm 24 not really traveling more. It's I'm traveling to 130 1 do a visit? 2 THE WITNESS: Correct. 3 ARBITRATOR BENN: Now let's take another 4 example. It's not a visit near my house, but I 5 have an 8:00 o'clock appointment in East Dubuque. 6 I leave my house at 5:30, so it's a two-and-a-half 7 drive to get to East Dubuque. I'm there until 8 4:00, and then it takes me two and a half hours to 9 drive home. So that's five hours of travel in 10 addition to the 7-1/2 or 8-hour workday. Before 11 November of 2009, what did I get in terms of 12 adjusted time for that? 13 THE WITNESS: Again, assuming the preapproval, 14 they may have received compensation for that time, 15 adjusted time travel. 16 ARBITRATOR BENN: Five hours adjusted time? 17 THE WITNESS: Yes. 18 ARBITRATOR BENN: What about now? 19 THE WITNESS: They would not receive 20 compensation towards accumulated comp time. 21 ARBITRATOR BENN: I thought those were going to 22 be the responses. I just wanted to make sure. 23 Anything on the two hypotheticals I gave? 24 MS. LEAHY: No. 131 1 MS. ALFERINK: No. 2 ARBITRATOR BENN: Thank you. 3 (Witness excused.) 4 MS. ALFERINK: Could we take a 5- or 10-minute 5 break? 6 ARBITRATOR BENN: Absolutely. 7 (A short break was taken.) 8 ARBITRATOR BENN: Back on the record. 9 (Witness sworn.) 10 DONALD W. EVANS, II, 11 called as a witness herein, having been first duly 12 sworn, was examined and testified as follows: 13 DIRECT EXAMINATION 14 BY MS. ALFERINK: 15 Q. Could you please state your full name for 16 the record? 17 A. Donald W. Evans, II. 18 MS. LEAHY: I'm sorry, once again, I'm going to 19 ask you to repeat that. 20 THE WITNESS: Donald W. Evans, II. 21 BY MS. ALFERINK: 22 Q. Where are you currently employed? 23 A. Illinois State Board of Education. 24 Q. What is your job title at ISBE? 132 1 A. Job title is Director of Human Resources 2 and Professional Development. 3 Q. How long have you held this title? 4 A. Since September 20th of 2004. 5 Q. What are your basic or general job duties? 6 A. Aside from the regular functions of 7 oversight of payroll, et cetera, also labor issues 8 to assure that we have consistency and policy Code 9 of Conduct, that type of thing, harassment, and 10 then compliance with bargaining unit agreements. 11 Q. How many divisions are there at ISBE? 12 A. Total divisions? I think there's about 13 between 19 and 23. 14 Q. Was that the same in November of 2009? 15 A. It could have been. I'm not real sure 16 because we have had some divisions that have 17 dissolved and merged into each other. 18 Q. As part of your normal job duties, do you 19 have a role in contract negotiations with IFSOE? 20 A. I do, yes. 21 Q. What is the role? 22 A. This past negotiation term, I was chief 23 negotiator, lead negotiator. 24 Q. Prior to that, were you employed at ISBE 133 1 when any other contracts between ISBE and IFSOE 2 were negotiated? 3 A. The contract just prior to this one I was 4 also employed with ISBE. 5 Q. Were you part of the negotiation team? 6 A. I was. 7 Q. I'm going to direct your attention to the 8 language in Article 5, Section 2. I'm going to 9 have you look at Joint Exhibit 1? 10 A. Article 5, Section 2? 11 Q. Correct. Are you there, Mr. Evans? 12 A. I am. 13 Q. I'm going to direct your attention 14 specifically to the language that says a policy 15 regarding travel time will be approved by the 16 employer after discussion with the Union. All 17 affected employees must be fully informed in 18 writing regarding such policy. 19 Do you see where I'm reading from, 20 Mr. Evans? 21 A. I do. 22 Q. When did this language first appear in the 23 IFSOE contract? 24 A. I believe it would have been the contract 134 1 just prior to this one. 2 Q. Are you referring to the contract that 3 took effect in 2005? 4 A. Yes. 5 Q. So when you say the contract just prior to 6 this one, because we have a new contract that has 7 taken effect in February? 8 A. That's right. That's right. 9 ARBITRATOR BENN: So the first time in was the 10 2005 Agreement? 11 THE WITNESS: Yes. 12 BY MS. ALFERINK: 13 Q. Were you present for the negotiations 14 pertaining to this section? 15 A. Yes. 16 Q. What was the nature of those 17 conversations? 18 A. Well, are you asking me -- 19 MS. LEAHY: I think there's a lack of 20 foundation, and then he said she said was 21 identification, not just a general summary of a 22 conversation. 23 ARBITRATOR BENN: It's important when dealing 24 with bargaining history to know what was said 135 1 across the table. What were the exchanges? 2 THE WITNESS: Well, I think the real point in 3 this particular item is there was not a lot 4 exchanged. The whole point of it was that we would 5 agree to come back and discuss this at some point 6 regarding what it referred to, which was 7 field-based employees. 8 BY MS. ALFERINK: 9 Q. Okay. I'm going to stop you there. You 10 mentioned field-based employees? 11 A. Yes. 12 Q. Can you expand on what field-based 13 employees are as opposed to the rest of the 14 employees at ISBE? 15 A. It basically has to do with their home 16 assignment or their home base, if you will. The 17 Chicago office, Springfield office, or in the 18 field. 19 Q. In 2005 when this language was first added 20 to the contract, how was the travel of field-based 21 employees treated? 22 MS. LEAHY: I hate to keep interrupting, but I 23 couldn't hear the last part of the question. 24 136 1 BY MS. ALFERINK: 2 Q. In 2005, when this language was first 3 added to the contract, how had the travel of 4 field-based employees been treated? 5 A. Field-based employees, their travel time 6 was considered part of their workday. 7 Q. In 2005, was management seeking to modify 8 this? 9 A. We were, yes. 10 Q. Based upon your previous response, you 11 weren't able to do that at the bargaining table? 12 A. That's correct. That's why that was put 13 in so that we would agree to come back and discuss 14 it at some point. 15 Q. Did you ever come back and discuss it with 16 the Union? 17 A. We got back together to attempt to arrange 18 to discuss it, but the discussion was never had as 19 yet. 20 MS. LEAHY: I'm sorry? 21 THE WITNESS: We had a discussion with the 22 previous -- or I had a discussion with the previous 23 president, Paula Stadeker, at the time. We did not 24 have the discussion itself, but we agreed to have 137 1 the discussion at some point. That point as yet 2 has not happened. 3 BY MS. ALFERINK: 4 Q. Was management seeking to have that 5 conversation? 6 A. We need to have the conversation and 7 resolution. That was the point. 8 Q. In 2005, why was management seeking to 9 change how the travel of field-based employees was 10 treated? 11 A. Because with field-based employees, travel 12 being included in the workday, it was oftentimes or 13 at least sometimes, travel being part of the day -- 14 they could travel two hours each direction, meaning 15 four hours of travel, three and a half hours of 16 actual work time. 17 Q. So for field-based employees, the employer 18 has no discretion to deny them traveling during 19 their normal workday; is that accurate? 20 A. As I see it, yes. 21 Q. Is the policy regarding field-based 22 employees' travel that was in effect in 2005 still 23 the same policy that is in effect for field-based 24 employees? 138 1 A. It is. 2 Q. I'm going to direct your attention to the 3 same article, Section 3. 4 A. Okay. 5 Q. If you can look at the second paragraph, 6 the last sentence, which reads: When changes 7 result in hours worked in access of the 37 and a 8 half hour scheduled workweek -- do you see the 9 sentence I'm at? 10 A. I do. 11 Q. When was this language added to the 12 contract? 13 A. I believe that this was put into the 14 contract even prior to this. I think 2001. 15 ARBITRATOR BENN: What sentence, the second 16 sentence? 17 THE WITNESS: Subject to the following 18 paragraph will be given time off equal to the 19 access hours worked. 20 MS. ALFERINK: Right. I'm in Article 5, 21 Section 3. 22 BY MS. ALFERINK: 23 Q. You have indicated that we have a new 24 contract in place. Now that's more current than 139 1 the contract that we've marked as Joint Exhibit 1? 2 A. Correct. 3 Q. You were lead negotiator for those 4 negotiations? 5 A. I was. 6 Q. Was there a discussion regarding changing 7 Article 5, Section 3? 8 A. Yes. 9 Q. During the last negotiation? 10 A. Yes. 11 MS. ALFERINK: I'm going to show you what I'm 12 going to mark as Employer's Exhibit 3. 13 (Whereupon, Employer's 14 Exhibit No. 3 was marked for 15 identification.) 16 MS. ALFERINK: Ms. Leahy, I'm showing him -- 17 this is in the set of documents I sent you last 18 week, the proposal from the Union that looks like a 19 table, and at the top it says June of 2009. 20 MS. LEAHY: Do you know if it was before or 21 after the memo that Mr. Murphy sent out the second 22 time? 23 MS. ALFERINK: It is before. 24 MS. LEAHY: You said it's a chart? 140 1 MS. ALFERINK: Well, it's like a table. 2 ARBITRATOR BENN: It's big. 3 MS. ALFERINK: I would guesstimate that it's 4 about halfway down the packet. 5 MS. LEAHY: Okay. It's about halfway down in 6 the packet, and it's not proposed language but 7 rather a chart? 8 MS. ALFERINK: It's a chart that contains 9 proposed language. It's a table. 10 ARBITRATOR BENN: It says Page 11 at the 11 bottom. 12 MS. LEAHY: I've got June of 2009, and it's 70 13 pages? 14 MS. ALFERINK: That's correct. 15 BY MS. ALFERINK: 16 Q. Mr. Evans, I've showed you what I've 17 marked as Employer's Exhibit 3? 18 A. Yes. 19 Q. Do you recognize this document? 20 A. This is a proposal from the Union to 21 management at negotiations. I believe this was 22 their first proposal. 23 Q. If you can direct your attention to 24 Page 11. Did the Union propose any changes 141 1 regarding Article 5? 2 A. They did. 3 Q. Did they make any proposals regarding 4 changing how travel time was to be considered? 5 A. Specifically, they proposed that all 6 travel times shall be considered as hours worked. 7 Q. In what section did they propose that to 8 be included in? 9 A. Section 3. Section 1, 2 -- according to 10 this, it's Section -- I'm sorry, Section 2. 11 Q. What was management's counterproposal to 12 this if you can recall? 13 A. We didn't accept it. 14 Q. Did management propose anything other than 15 to keep the contract language the same regarding 16 accumulating adjusted time regarding only earning 17 adjusted time for hours spent working? 18 A. I don't recall a specific discussion. I 19 do know by the end result, and I believe that is 20 what we wanted to maintain, yes. 21 MS. ALFERINK: I'm going to show you what I'm 22 going to mark as Employer's Exhibit 4. 23 (Whereupon, Employer's 24 Exhibit No. 4 was marked 142 1 for identification.) 2 MS. ALFERINK: Ms. Leahy, that should be right 3 behind the one you just got. It should be titled 4 at the top IFSOE Contract Negotiations with the 5 date of September 2nd, 2009. 6 MS. LEAHY: So it should be after what I just 7 pulled? 8 MS. ALFERINK: Right. 9 MS. LEAHY: The next document I have after that 10 is a salary schedule proposal. 11 MS. ALFERINK: I didn't say it was immediately 12 after. It's just after. 13 MS. LEAHY: The date of it is? 14 MS. ALFERINK: September 2, 2009. 15 MS. LEAHY: After that, I'm moving into 16 proposals in 2010. 17 ARBITRATOR BENN: Off the record. 18 (Discussion off the record.) 19 BY MS. ALFERINK: 20 Q. Mr. Evans, in September of 2009 did IFSOE 21 submit another proposal that pertained to -- among 22 other things -- Article 5, Section 2 and 3? 23 A. They did. 24 Q. Was that proposal identical to the 143 1 proposal regarding Article 5, Section 2 or 3, 2 the proposal that they had submitted in June of 3 '09? 4 A. The question, again, was it the same? 5 Q. Yes. 6 A. Well, I think it has some variations, but 7 it does have all work-related travel time shall be 8 considered as hours worked. So some language 9 change, sure. 10 MS. LEAHY: You know, I really would appreciate 11 finding that document before we go any further 12 since he testified there are changes in it. 13 MS. ALFERINK: Okay. 14 ARBITRATOR BENN: Off the record. 15 (A short break was taken.) 16 (Discussion off the record.) 17 ARBITRATOR BENN: You got a three-page document 18 which is marked Employer's Exhibit 4? 19 MS. LEAHY: I have it. 20 BY MS. ALFERINK: 21 Q. Mr. Evans, I'm going to show you what 22 we've marked as Exhibit 4. It's almost the same as 23 what we have in front of you, but Exhibit 4 is only 24 the three pages? 144 1 A. Yes. 2 Q. Do you recognize this document? 3 A. Yes. This is another proposal from IFSOE. 4 Q. Submitted during the last contract 5 negotiations? 6 A. Yes. 7 Q. Did they propose any changes to Article 5 8 Section 2 or 3? 9 A. Article 5, Section 2, yes, and Section 3, 10 yes. 11 MS. ALFERINK: I am now going to direct your 12 attention to what I'm going to mark as Exhibit 5. 13 (Whereupon, Employer's 14 Exhibit No. 5 was marked for 15 identification.) 16 BY MS. ALFERINK: 17 Q. Ms. Leahy this says Union Proposal No. 4 18 at the top. Do you have it in front of you, 19 Ms. Leahy? 20 MS. LEAHY: It's entitled? 21 MS. ALFERINK: Union Proposal No. 4. 22 MS. LEAHY: And the date is? 23 MS. ALFERINK: March 31st, and then right 24 behind that is Union Proposal No. 5. I'm going to 145 1 submit these two pages as Employer's No. 5. 2 MS. LEAHY: Okay. I've got Union Proposal 3 No. 5. 4 MS. ALFERINK: Okay. Right before No. 5 should 5 be No. 4. 6 MS. LEAHY: Okay. Union Proposal No. 4 and 7 No. 5? 8 MS. ALFERINK: Yes. 9 MS. LEAHY: And that is going to be? 10 MS. ALFERINK: Employer's Exhibit No. 5. 11 BY MS. ALFERINK: 12 Q. Mr. Evans, I'm showing you what we have 13 marked as Employe's Exhibit No. 5. Do you 14 recognize this two-page document? 15 A. Another Union proposal for the 16 negotiations. 17 Q. And this proposal covers Article 5 18 Sections 2 and 3, is that correct? 19 A. It does. 20 Q. What was management's response to this 21 proposal? 22 A. Declined. 23 MS. ALFERINK: I'm going to move to admit 24 Employer's Exhibit 3, 4 and 5. 146 1 ARBITRATOR BENN: Any objection? 2 MS. LEAHY: No. 3 ARBITRATOR BENN: All right. They're received. 4 (Whereupon, Employer's 5 Exhibit Nos. 3-5 were 6 received in evidence.) 7 BY MS. ALFERINK: 8 Q. When was the current contract between ISBE 9 and IFSOE ratified? 10 A. The current contract was in February, I 11 believe, of '11. 12 Q. Were there any changes made regarding 13 travel time and adjusted time in the newest 14 contract ratified in February of this year? 15 A. No. 16 Q. I'm going to turn your attention now to 17 Joint Exhibit No. 1, which is the grievance. At 18 some point you became aware that Mr. Murphy was 19 approving his staff to accumulate adjusted time for 20 hours spent traveling, is that accurate? 21 A. Yes. 22 Q. How did that come to your attention? 23 A. I believe it was a complaint from someone. 24 Q. As a result of that complaint, what did 147 1 you do? 2 A. I went in to look and see if there was 3 indeed a problem in the division. 4 Q. Was there indeed a problem? 5 A. There was. 6 Q. What was that problem? 7 A. There was time, traveling, that was being 8 given or in exchange for comp time. 9 Q. What did you do after that to address the 10 problem? 11 A. That's when I had the meeting with 12 Mr. Murphy, Linda Tomlinson and you were there 13 present. 14 Q. During this meeting, what did you learn? 15 A. That it indeed had been going on. 16 Q. Who did you learn that from? 17 A. Patrick Murphy. 18 Q. Was the plan discussed for a corrective 19 action? 20 A. Well, we had talked about we would have to 21 let the employees know, but there was no further 22 discussion because there was something else going 23 on and we were going to get back together and 24 finalize -- at least that was my thought. 148 1 Q. When you said the employees were going to 2 have to know, what do you mean by that? 3 A. Well, they were going to have to let them 4 know, you know, advise them that although this had 5 been occurring it was no longer going to occur 6 because of the terms of the contract. 7 Q. Was a plan discussed on how notification 8 to staff was going to be made? 9 A. Not that I recall. 10 Q. In front of you, you have Joint 11 Exhibit 1. Do you recognize this document? 12 A. The grievance report, yes. 13 Q. Does it contain an E-mail? Does it 14 contain language from an E-mail? 15 A. It looks as though it does. According to 16 this, it says stating the following, so I'll assume 17 this is accurate from an E-mail. 18 Q. Did you see this E-mail that's contained 19 within this grievance before Mr. Murphy sent it out 20 to his staff? 21 A. No. 22 Q. After this E-mail goes out from Mr. Murphy 23 to his staff, what happened next? 24 A. Actually, after this went out, I had heard 149 1 -- someone brought me or sent me, I believe, an 2 E-mail that went out to the membership of IFSOE 3 from their president at the time, Jim Mathis. 4 Q. Do you recall the overall gist of that 5 E-mail? 6 A. It was advising them about the situation 7 in terms of that they should not assume -- I think 8 that jumps out to me -- that they should not assume 9 that comp time will be automatically given, but I 10 don't remember the full thing. I'm sorry. 11 Q. Based upon your reading of that E-mail, 12 did you come to any conclusions or have any 13 suspicions regarding whether or not adjusted time 14 for time spent traveling was being given in other 15 divisions besides Mr. Murphy's division? 16 A. Well, I just did think -- conclusions 17 aside. I don't know that I concluded anything. I 18 just thought that it would be practical to look and 19 see because it went out to the membership, if this 20 was indeed a problem going on in other divisions. 21 Q. What did you do after you received that 22 E-mail? 23 A. Which, the one from Mathis? 24 Q. Yes. 150 1 A. I checked in with various division 2 administrators and had conversations to see what 3 they were doing. 4 Q. What did you learn from these meetings? 5 A. It was all over the board. It was going 6 on. It was not going on. It was going on under 7 terms if they're going out of state, if it's on the 8 weekend. There was nothing consistent, and it 9 needed to be addressed certainly. 10 Q. What was the result of those meetings? 11 A. That they were to follow the agreed terms 12 of the contract, which clearly states that -- I'll 13 just go from memory without quoting the contract -- 14 comp time will be given for hours worked. 15 MS. ALFERINK: I don't have any further 16 questions for you. 17 ARBITRATOR BENN: Cross? 18 CROSS-EXAMINATION 19 BY MS. LEAHY: 20 Q. Which of the divisions was following 21 Mr. Murphy's practice in regard to adjusted time 22 for travel time? 23 A. Pardon me, which of the divisions? 24 Q. Yes, or which unit? 151 1 A. I really don't know. I just remember that 2 it was inconsistent across the agency. 3 Q. You don't know how many were following 4 Mr. Murphy's practice? 5 A. I don't. 6 Q. You were present during testimony today, 7 right? 8 A. I was sitting right here, yes. 9 Q. What about the unit that deals with 10 dietary and commodities? 11 A. Nutrition? 12 Q. Yes. 13 A. What about it? 14 Q. What about that division? What was his 15 policy? 16 A. I don't know specifically what it was. At 17 the time, I don't recall the details. 18 Q. Do you know the details or even general 19 policy of each of the divisions? I think you said 20 there were 19 to 23? 21 A. There were. And the way I see it, the 22 policy is the Bargaining Unit Agreement, which 23 prohibits comp time for anything other than hours 24 worked. 152 1 Q. Is that your interpretation of what 2 section -- 3 A. That's what the contract says. 4 Q. Can you tell me where that's prohibited? 5 A. Where is the current contract? Is that 6 this one? 7 MS. ALFERINK: This. 8 THE WITNESS: That's this one? 9 MS. ALFERINK: Yes. 10 THE WITNESS: This is Article 5, Section 3, 11 Paragraph 2, I believe it is. That's a mighty long 12 sentence, but I'll read it to you. 13 BY MS. LEAHY: 14 Q. Is the word prohibited in there? 15 A. Prohibited? If we're talking semantics, 16 I don't see that word prohibited, but I suspect 17 that there's other language and would certainly 18 argue that there's other language that specifically 19 says that but not using your word. 20 Q. You think there's other language that 21 prohibits the practice? 22 A. It says subject to the following 23 paragraph, will be given time off equal to the 24 excess hours worked. I think that says that. I 153 1 believe that says that. 2 Q. So apparently, Mr. Murphy, both as a 3 principal consultant and then as an administrator 4 had concluded that hours worked included travel 5 time; right? 6 A. I don't know what he concluded. I know 7 that he did not follow the contract as it was 8 written. 9 Q. Mr. Evans, apparently you believe the 10 contract as written prohibited giving comp time for 11 travel done beyond the seven and a half hours on 12 the scheduled day for the employee; right? 13 A. That's what it says, yes. 14 Q. Now what division was following that 15 interpretation back in November when you looked at 16 all the divisions, 19 to 23 of them? 17 A. I really don't remember the specifics 18 other than that the goal was to get all the 19 divisions to follow the express terms and the plain 20 language of the contract. 21 Q. Did you do any report indicating what each 22 division's practice had been? 23 A. I did not. 24 Q. You can't remember what it was about any 154 1 other division other than Mr. Murphy's today? 2 A. I didn't remember anything about 3 Mr. Murphy's either other than what we've heard 4 today, but I don't recall. You are correct. 5 Q. Mr. Evans, are you familiar with the State 6 Board of Education Travel Guide issued in July of 7 2009? 8 A. I am somewhat. 9 Q. We'll mark it as I believe Union 9 -- I'm 10 sorry, Union 8. 11 A. Okay. 12 (Whereupon, Union Exhibit 13 No. 8 was marked for 14 identification.) 15 BY MS. LEAHY: 16 Q. Are you familiar with this document? 17 A. I am aware of this document, yes. 18 Q. Calling your attention to Page 6, 19 Section 2.110. 20 A. Okay, expenses at headquarters or 21 residence. 22 Q. Yeah, and then it talks in detail about 23 when the travel board will approve reimbursement 24 for travel expenses; correct? 155 1 A. Okay. 2 Q. If you review Employer Exhibit 5, 3 Employers Exhibit 5 was the Union Proposal 4 and 5? 4 A. Okay. 5 Q. If you look at Proposal No. 4, it somewhat 6 tracks Section 2.110 of the travel guide; right? 7 A. What words are we looking at? 8 Q. On Page 6, Section 2.110 of Union 9 Exhibit 8 compared to Employer Exhibit 5. 10 A. And what are we doing? We're looking to 11 compare what? 12 Q. I'm asking if those two documents track. 13 In other words, that the travel time as reflected 14 in Employer 5 is reimbursable travel time as 15 reflected in Section 2.110? 16 A. But you're asking me this proposal, if it 17 mirrors the travel guide? 18 Q. Yes. 19 A. I don't know without sitting and reading 20 every single word, but the travel is completely 21 separate and apart from the Union contract. I 22 might be missing something, I'm sorry. 23 Q. Mr. Evans, when you found out this problem 24 existed with Mr. Murphy's division and travel 156 1 reimbursement or compensation, you said you got a 2 complaint from someone? 3 A. Travel reimbursement has nothing to do 4 with comp time. 5 Q. I had moved on, Mr. Evans, I thought. 6 A. Well, then I guess I'm confused. Can you 7 help me? 8 Q. You testified that you became aware of a 9 problem in Mr. Murphy's division regarding allowing 10 adjusted time for travel time? 11 A. Comp time for hours traveled, correct. 12 Q. All right. You said you learned that 13 through a complaint? 14 A. As I recall, yes. 15 Q. Who complained? 16 A. I don't remember. 17 Q. Was it oral or in writing? 18 A. I actually don't remember. 19 Q. Did you then pull records to determine 20 whether Mr. Murphy was giving comp time for travel 21 time in access of the seven and a half hours a day? 22 A. That would be possible that I would have 23 looked at different documentation, yes. 24 Q. Did you, or was it just possible and you 157 1 don't remember? 2 A. It makes sense that I would have, but I 3 don't remember the specifics. 4 Q. Do you remember generally pulling any 5 documents to see how travel time in excess of seven 6 and a half hours was treated in Mr. Murphy's 7 division? 8 A. I do apologize, but I really don't with so 9 much that I work with. I don't remember the 10 details of it specifically. 11 Q. Do you remember generally looking at 12 documents? 13 A. I just don't. I may have even had someone 14 else pull the documents, which I'm sure I would 15 have done. Then we might have looked at them 16 together. It might have been also part of the 17 conversation that I had with Mr. Murphy. 18 Q. Did you pull any documents related to 19 whether or not comp time was being given in other 20 divisions for travel time over and beyond the 21 seven-and-a-half-hour day? 22 A. No. 23 Q. When you found out about the problem in 24 Mr. Murphy's division, did you make the Union aware 158 1 of that? 2 A. Aware of? 3 Q. The problem. 4 A. No. 5 Q. This was a change, wasn't it, in the way 6 travel time was going to be handled in his 7 division? 8 A. It could be seen as a change certainly 9 from what he was doing, but it was to get into 10 alignment with what the contract required. That 11 was the reason why the intent was for him to at 12 some point notify the staff. 13 Q. If you look at Article 5, Section 2 of 14 Joint Exhibit 2, it says a policy regarding travel 15 time will be approved by the employer after 16 discussion with the Union; isn't that correct? 17 A. Yes, uh-huh. 18 Q. At any time did you discuss the content of 19 the E-mail that is the subject matter of this 20 grievance with the Union prior to Mr. Murphy 21 sending it out? 22 A. That had nothing to do with that. As I 23 stated before, that particular statement was 24 specifically in regard to field-based employees, 159 1 period. 2 Q. It doesn't say anything about field staff 3 in that sentence or in this article, right? 4 A. It does not. 5 Q. So I'm asking you, again, did you have any 6 discussion with the Union about the content of 7 Mr. Murphy's E-mail that is the subject matter of 8 this grievance before he sent it out? 9 A. We did not, but this again had nothing to 10 do with anyone other than field-based employees. 11 Q. Did you have any discussion with the Union 12 after Mr. Murphy sent out his E-mail about the 13 content of it? 14 A. There may have been some discussion, I 15 suspect. Certainly, I know there was discussion 16 through the grievance process, but I really don't 17 remember. 18 Q. Other than the grievance process, do you 19 remember any discussion with the Union? 20 A. I cannot recall. 21 Q. Let's go to those field-staff employees. 22 They work out of their homes? 23 A. Well, they technically work in the field, 24 so not necessarily out of their home. 160 1 Q. Okay. I thought you said there were three 2 categories -- those whose headquarters were in 3 Chicago, those whose headquarters were in 4 Springfield, and those in the field? 5 A. That's correct. 6 Q. Do they have an office, or do they office 7 out of their home? 8 A. Well, the office that they use, they can 9 use their home certainly as any employee can use 10 their home, but they spend most of their time in 11 the field and that's where their work is generally 12 conducted. 13 Q. What is the travel time policy regarding 14 those field employees? 15 A. That really further supports why we were 16 to have this specific discussion, because the 17 field-based employees are considered working once 18 they step outside of their home, because 19 technically they are working because they are in 20 the field. And once they're outside their home, 21 they are now in the field. 22 Q. All right. So they're considered working 23 from the time they leave their home until they 24 return to their home? 161 1 A. No, not necessarily that, but travel is 2 included as part of their workday. 3 Q. How many field-based employees are there? 4 A. I don't know off the top of my head. 5 Q. No estimate even? 6 A. Not off the top of my head. 7 Q. How many employees are there at the Board? 8 A. 458 as of yesterday. 9 Q. Do you have any idea the breakdown between 10 Chicago, Springfield and the field? 11 A. Roughly 80 in Chicago. Field, I don't 12 know. Springfield would then be the difference 13 between the two. 14 Q. So travel is included in the field 15 workers' workday? 16 A. Travel is part of their workday, yes, 17 which is why we wanted to have the discussion and 18 put that specifically into the contract so that we 19 would have the discussion to determine a way to 20 best address the issues when it's a two-hour each 21 way travel day. That's four hours, meaning they're 22 spending more time traveling than they are 23 producing. 24 Q. As of today, do the workers in the field 162 1 include travel in their workday? 2 A. They do. 3 Q. Now what if the traveler in the field 4 travels two hours to the work site or the school 5 site and he needs to be there six hours, and then 6 he leaves and travels home for a total of a 10-hour 7 day? 8 A. I think under the concept of travel time 9 as part of the workday, you would add the hours 10 up. The difference between the full workday and 11 the hours beyond the full workday would be comp 12 time. 13 MS. LEAHY: Could I just have a moment, 14 please? 15 ARBITRATOR BENN: Okay. 16 BY MS. LEAHY: 17 Q. I believe you testified that there was 18 some discussion with a prior Union president about 19 attempting to come back to discuss this issue? 20 A. Which issue? 21 Q. The one about the field workers. 22 A. The policy regarding travel about the 23 field workers? 24 Q. Yes. 163 1 A. Yes, I did. I spoke with Paula 2 Stadeker to see if we could get something 3 scheduled, and it was determined that we could 4 not at that time. 5 Q. When was that? 6 A. That would have been -- well, certainly 7 prior to her retirement and her time as the 8 president. So, I mean, back-mapping that, 9 probably four years ago. It could be longer. 10 I don't remember the exact date. 11 Q. I gather then in the negotiations of 2005 12 that led to the contract, 2005 to 2009 to the 13 present, because the language hasn't changed; 14 right? 15 A. I don't believe it has. 16 Q. You wanted to maintain that language in 17 2005, correct? 18 A. Which language, all of Article 5? 19 Q. Yes. 20 A. I will say -- and I don't remember if we 21 might have had minute corrections -- our first 22 proposal was to maintain the entire contract. 23 Q. But as I understand it, no changes were 24 made in Article 5 in 2005, right? 164 1 A. I think that's correct. 2 Q. So the 2001 contract read this way in 3 Article 5. The 2005 one read that way, and the 4 current one reads that way; right? 5 A. That would stand to reason, uh-huh. 6 Q. That's a yes? 7 A. I can't say that it's a yes without going 8 back and actually looking. If one word was 9 changed, I would be giving an inaccurate response. 10 If you want me to do the comparison, I can take the 11 time to do so. 12 Q. But at least you'd agree that no changes 13 were made in 2005 in that article and none in 2009, 14 right? 15 A. I believe that is correct. 16 Q. Let me ask you this, Mr. Evans. Are field 17 workers scattered throughout all the divisions? 18 A. I would say no. 19 Q. What divisions are they in? 20 A. I don't know that I'll get all of them, 21 but Nutrition and External Assurance I know for 22 certain they are in. 23 Q. Anything else? 24 A. Possibly, but not that I recall. 165 1 Q. Mr. Evans, was anything done by you or 2 anybody else to your knowledge at the State Board 3 of Education to study any impact that the change in 4 practice of Mr. Murphy was going to have on 5 employees? 6 A. No. 7 Q. Any study of the financial impact either 8 on the Board or on the employees? 9 A. An analysis of what that would be? I'm 10 not sure what you mean exactly. 11 Q. Well an analysis of how much comp time you 12 would be saving if you denied the employees comp 13 time for travel above and beyond their 14 seven-and-a-half-hour day? 15 A. Actually, no, our concern was just to get 16 in alignment with the express terms of the 17 contract. It wasn't about the money. It was 18 about the Agreement. 19 Q. Was there any thought given to making 20 everyone else consistent with Mr. Murphy's 21 practice? 22 A. Consistent with violation of the 23 contract? No, there was no thought about violating 24 the contract if that's what you're asking. 166 1 Q. Did you talk with the Union about the fact 2 that management had been violating the contract? 3 A. No. 4 Q. Mr. Evans, you'd agree that some employees 5 at the Illinois State Board never traveled related 6 to their work, right? 7 A. I would agree that there are some 8 employees that do not travel, correct. 9 Q. And some travel a few times a year, like 10 you heard the evidence about going to a conference; 11 right? 12 A. That's reasonable. 13 Q. And then there are other employees who 14 travel quite a bit? 15 A. Yes. 16 Q. Including the field workers? 17 A. Correct, or in addition to those field 18 workers. 19 Q. Did you inquire of Mr. Murphy how long his 20 practice of handling travel over and above the 21 seven and a half hours had been going on? 22 A. No. 23 Q. Do you understand the meaning of past 24 practice? 167 1 A. I actually am not an attorney either, so I 2 don't understand the full legal meaning of that 3 term. 4 Q. Do you have any understanding of it? 5 A. No. 6 MS. ALFERINK: Objection, calls for a legal 7 conclusion. 8 ARBITRATOR BENN: It's argumentative. 9 MS. LEAHY: Mr. Benn, if I may have a couple of 10 minutes? 11 ARBITRATOR BENN: Of course. 12 (A short break was taken.) 13 MS. LEAHY: I have no further questions. I 14 would move to admit Union Exhibit 8. 15 ARBITRATOR BENN: Any objection to 8? 16 MS. ALFERINK: No objection. 17 ARBITRATOR BENN: Union 8 is in. Thank you. 18 (Whereupon, Union 19 Exhibit No. 8 was 20 received in evidence.) 21 ARBITRATOR BENN: Redirect? 22 REDIRECT EXAMINATION 23 BY MS. ALFERINK: 24 Q. Mr. Evans, I know that you can't recall 168 1 what specifically each division was doing in 2 November of 2009, but were there some divisions who 3 were not giving comp time for hours spent 4 traveling? 5 A. Yeah. It was inconsistent. Part of it 6 was some were not, and then a variation of how they 7 were given. 8 Q. Ms. Leahy showed you the travel guide, and 9 the section she pointed out deals with 10 reimbursement of mileage? 11 A. Right. 12 Q. Has anything changed since November of '09 13 regarding employees being compensated or reimbursed 14 for mileage? 15 A. The rate may have. But, again, this is 16 done through fiscal and it has nothing to do with 17 the contract or specifically HR. I know that the 18 rate has changed. 19 Q. So I'm going to ask you a hypothetical 20 question. Prior to November of '09, if an 21 employee -- we'll use Patrick Lee because he 22 testified today -- was given comp time or time 23 spent traveling that he would not be given comp 24 time for today, would anything be different aside 169 1 from perhaps the rate regarding him being 2 reimbursed for the mileage. 3 A. No, because they're not related. 4 Q. Are there instances where an employee's 5 travel will not count or accumulate into adjusted 6 time, but that employee will nevertheless be 7 reimbursed using the mileage rate for the miles 8 traveled? 9 A. Correct. Reimbursement, again, is 10 separate and apart. 11 Q. In 2005, I think your prior testimony was 12 in that contract the language was added about 13 having a discussion with the Union at a later time 14 about the travel policy; is that accurate? 15 A. Are we back to the field-based. 16 Q. Yes. 17 A. Yes. 18 Q. Do you know whether or not field-based 19 employees have been requesting comp time for hours 20 spent traveling? Can you think of any instances 21 where that has happened? 22 A. Off the top of my head, I cannot. 23 Q. And Ms. Leahy asked you a lot about did 24 you do any studies about the impact of these 170 1 employees. I want to ask you about the impact this 2 has had on the agency since November of '09. Have 3 you seen any increase in productivity since the 4 contract has been uniformly followed? 5 A. Well, we have heard that productivity has 6 increased, but me seeing it, specifically, no. 7 Just some divisions are noticing that there is an 8 increase of productivity, yes. 9 Q. That has been reported back to you either 10 by the assistant superintendent or the DAs? 11 A. Through conversation, yes. 12 MS. ALFERINK: I don't have anything further 13 for you, Mr. Evans. 14 ARBITRATOR BENN: Anything else? 15 RECROSS-EXAMINATION 16 BY MS. LEAHY: 17 Q. Mr. Evans, there isn't any study of 18 productivity ongoing of the State Board? 19 A. No. No specific study, no. 20 Q. So you just heard it that productivity was 21 up? 22 A. Right. It has to do with the meeting of 23 timelines, and if you're familiar with our 24 staffing. There's staffing challenges that we face 171 1 and timelines attached to everything. We do know 2 that we are meeting timelines. Now, whatever that 3 means in terms of why is separate and apart because 4 there was no specific study, but it stands to 5 reason that if there's less time that staff is out 6 on comp time that there's more time to get the 7 business of ISBE completed. 8 Q. But there's no report, nothing concrete 9 that you have in regard to that; right? 10 A. We have done no study or analysis. 11 Q. In regard to Mr. Lee, do you know of any 12 time in February of 2010 when he has received comp 13 time for travel time over and above seven and a 14 half hours a day? 15 A. I don't know without looking. 16 Q. If he had received such comp time, would 17 that be a violation of the E-mail sent out by 18 Mr. Murphy? 19 A. I'm not sure what you mean violation of an 20 E-mail? 21 Q. Well, it's contained in Joint Exhibit 1. 22 A. Okay. So you're saying would it be in 23 conflict with what he should be doing? I'm not 24 sure I understand the question. 172 1 Q. Yes. So if Mr. Lee went to East Dubuque 2 on a visit to a particular school, and his actual 3 day from start to finish was let's say 10 hours, 4 and the beginning of the day and the last part of 5 the day were travel, would he receive comp time 6 over and above the seven and a half hours? 7 A. He should not. There is another piece to 8 this too. When you're talking about the Dubuque 9 visit, I'm not sure how many miles specifically it 10 was, but part of it is too if it's so far that it's 11 going to take such a number of hours, you do have 12 the choice of traveling the day before and staying 13 at a hotel. 14 Q. Where's that written down? 15 A. That is in the travel guide that you had 16 me look at earlier. 17 Q. So it's not in the contract? 18 A. Right, exactly. I mean the travel guide, 19 you're right, is different than the contract. They 20 don't have anything to do with each other. 21 Q. Okay. So then he could travel for let's 22 say two and a half hours at the end of the seven 23 and a half hours on one day, stay overnight, and 24 the State would pay him per diem for a hotel room? 173 1 A. If it's a certain distance. I don't know 2 that two and a half hours is the qualifier. 3 Q. Okay. Well, let's say it's within the 4 mileage? 5 A. Yeah, whatever the terms are of the travel 6 policy. Again, I think I told you that I'm not 7 familiar with it, but I'm aware of it. I don't 8 really know all the nuances. 9 Q. So then he could go the night before, 10 travel during the seven and a half hours, right, 11 stay all night in the hotel, do his work at the 12 school in East Dubuque, and then return during the 13 seven and a half hours on the second day? 14 A. That is a possibility. 15 Q. Well, I mean, could he do that? 16 A. It is a possibility. 17 Q. It wouldn't be rejected? 18 A. I didn't say that. I said it's a 19 possibility. 20 Q. How does he get approval for that? 21 Because I think you said a moment ago he could 22 travel the prior day and stay overnight in a hotel? 23 A. How does he get approval for what? How 24 does he get approval for the travel that you talked 174 1 about, or are we back to the hotel? 2 Q. Let's go through the whole scenario. How 3 does he get approval to travel to East Dubuque 4 during his seven and a half hour workday, stay in a 5 hotel overnight, complete his work at the school in 6 East Dubuque the next day and then travel home? 7 A. Well, I believe that a request is involved 8 as per the contract. The terms of the hotel would 9 be reliant upon the travel rules themselves, and 10 then of course it is a scenario that also involves 11 the work that has to be done. There is no specific 12 guarantee. I mean, you're asking me for the 13 words. The words are not in the contract to 14 guarantee either way. The only thing that is there 15 is that time off will be given equal to the excess 16 hours worked. That's the only thing that's quite 17 specific. 18 Q. And not travel? 19 A. Travel is not hours worked. 20 Q. Okay. Has there been any study done in 21 regard to the cost-effectiveness of giving comp 22 time versus the overnight hotel per diem scenario? 23 A. Not that I am aware of. 24 Q. By the way, is comp time both paid out or 175 1 time off? 2 A. Comp time is not pay. 3 Q. So you have to take time off. You can't 4 cash it in? 5 A. Right. 6 MS. LEAHY: Just one second more, Mr. Benn? 7 ARBITRATOR BENN: Sure. 8 MS. LEAHY: Just a couple more questions. 9 BY MS. LEAHY: 10 Q. You testified that you approached a former 11 president of the Union when she was president about 12 getting together on this travel for field people? 13 A. Uh-huh. 14 Q. Yes? 15 A. Yes. We had a conversation. I don't know 16 that I necessarily approached her. 17 Q. Then Mr. Mathis succeeded her, correct, as 18 president of the local? 19 A. He did. 20 Q. Did you talk with him about getting 21 together about this travel? 22 A. No. He didn't speak to me either. 23 Q. And what about the current president, 24 Jamie Bader? 176 1 A. Not at this time. 2 Q. You haven't talked with her about it? 3 A. No, and she hasn't spoken with me about it 4 either. 5 Q. Was she at the Collective Bargaining 6 negotiations in '05? 7 A. I don't remember. I don't think so, but I 8 don't recall. 9 MS. LEAHY: Nothing further. 10 ARBITRATOR BENN: Redirect? 11 REDIRECT EXAMINATION 12 BY MS. ALFERINK: 13 Q. Mr. Evans, did Mr. Mathis approach you and 14 ask to set up a meeting to discuss the travel 15 policy when he was the president? 16 A. He did not. 17 Q. Has Ms. Bader approached you for a similar 18 reason? 19 A. She did not. 20 Q. I just want to be clear for the record 21 because Ms. Leahy asked it two different ways. 22 In the East Dubuque scenario, which is 23 what we've been talking about a few times today, if 24 an employee -- we'll use Patrick Lee -- wanted to 177 1 travel the day before to get to East Dubuque, he 2 could request to leave during his normally 3 scheduled seven-and-a-half-hour workday; is that 4 correct? 5 A. That's correct. 6 MS. ALFERINK: I don't have anything. 7 ARBITRATOR BENN: Last chance. Anything 8 further? 9 MS. LEAHY: No. 10 ARBITRATOR BENN: Thank you. Any further 11 witnesses? 12 MS. ALFERINK: No. 13 ARBITRATOR BENN: Any rebuttal? 14 MS. LEAHY: No. 15 ARBITRATOR BENN: Off the record. 16 (A short break was taken.) 17 ARBITRATOR BENN: The parties have stated a 18 desire to file briefs in this matter. The briefs 19 will be due 30 days from receipt of the 20 transcript. When I get my copy, I will send you an 21 E-mail. It will state a postmark date. We'll ask 22 you to send me two copies, and then I'll make the 23 exchange. I want to thank you for an extremely 24 well-presented case. I get it. 178 1 STATE OF ILLINOIS ) 2 ) SS: 3 COUNTY OF C O O K ) 4 5 Frances S. Lucente, being first duly 6 sworn, on oath says that she is a court reporter 7 doing business in the City of Chicago, and that she 8 reported in shorthand the proceedings of said 9 hearing, and that the foregoing is a true and 10 correct transcript of her shorthand notes so taken 11 as aforesaid. 12 13 ______________________________ 14 Certified Shorthand Reporter 15 16 17 18 19 20 21 22 23 24