Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P54 pps

REPRESENTATIVE, provided that the employ- ees’ representative has majority support in the bargaining unit. n Those certain subjects, called mandatory subjects of bargaining, include wages, hours, and other terms and conditions of employment. n The employer and the union are not required to reach agreement but must bargain in GOOD FAITH over mandatory subjects of bargaining until they reach an impasse. n While a valid collective bargaining agree- ment is in effect and while the parties are bargaining but have not yet reached an impasse, the employer may not unilaterally change a term of employment that i s a mandatory subject of bargaining. But once the parties have reached an impasse, the employer may unilaterally implement its proposed changes, provided that it has previously offered the changes to the union for consideration. Exclusive Representation A majority of the workers in a bargaining unit must designate a representative with the sole or exclusive right to represent them in negotiations with the employ- er’s representative (29 U.S.C.A. § 159(a)). The employer is not required to bargain with an unauthorized representative (§ 158[a][5]). Once a valid representative has been selected, even workers who do not belong to the union are bound by the collective bargaining agreement and cannot NEGOTIATE individual contracts with the employer (J. I. Case Co. v. NLRB, 321 U.S. 332, 64 S. Ct. 576, 88 L. Ed. 762 [1944]). As a COROLLARY, the employer may not extend different t erms to any work ers in the bargain- ing unit, even if those terms are more favorable, unless the collective bargaining agreement con- templates flexible terms (Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 95 S. Ct. 977, 43 L. Ed. 2d 12 [1975]). Once the NLRB certifies a union as the exclusive BARGAINING AGENT, the union enjoys an irrebuttable presumption of majority support for one year (Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 107 S. Ct. 2225, 96 L. Ed. 2d 22 [1987]). During that year, the employer may not refuse to bargain with the union on the ground that the union does not represent a majority of employees. After that year expires, the employer may rebut the presumption that the union represents a majority of employees by showing either that the union in fact does not enjoy majority support or that the employer has a good faith doubt founded on sufficient objective evidence that the union has lost majority support (NLRB v. Curtin Matheson Scientific, 494 U.S. 775, 110 S. Ct. 1542, 108 L. Ed. 2d 801 [1990]). In cases where the employer doubts that a union enjoys majority support, the employer may anticipatorily withdraw rec- ognition of the union by insisting on a collective bargaining agreement that will terminate with the end of the certification year (Rock-Tenn Co. v. NLRB, 69 F.3d 803 [7th Cir. 1995]). Similarly, a successor employer may not simply refuse to recognize the union for bargaining purposes. Instead, courts have re- quired successor employers to recognize the incumbent union if “substantial continuity” exists between both employers (NLRB v. Burns Security Service, 406 U.S. 272, 92 S. Ct. 1571, 32 L. Ed. 2d 61 [1972]). To determine whether there is substantial conti nuity, courts will consider, among other factors, whether both employers are engaged in the same business, whether the employees perform substantially similar tasks under both employers, whether the customer base remains much the same, and whether the successor employer continues to use the same industrial or business processes as its predecessor (Frye v. Specialty Envelope, 10 F.3d 1221 [6th Cir. 1993]). Mandatory Subjects of Bargaining Although the partie s need not bargain over every conceivable topic, they must bargain in good In a show of support for collective bargaining rights, state employees gather in Sante Fe, New Mexico, in February 2003. One month later, Governor Bill Richardson signed a bill restoring the employees’ right to collective bargaining. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 518 COLLECTIVE BARGAINING faith over mandatory subjects of bargaining, which include wages, hours, and other “terms and conditions of employment” (29 U.S.C.A. § 158(d)). Because these mandatory subjects are very broad, courts over the years have attempted to set standard s for determining whether a specific bargaining topic is mandato- ry. Generally, terms and conditions of employ- ment encompass only issues that “settle an aspect of the relationship between the employer and the employees” (Allied Chemical & Alkali Workers of America v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S. Ct. 383, 30 L. Ed. 2d 341 [1971]). If one party wishes to bargain over a mandatory subject, it is an unfair labor practice for the other to refuse. Other topics are permissive subjects of bargaining, and it may be an unfair labor practice for a party to demand bargaining over them (NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S. Ct. 718, 2 L. Ed. 2d 823 [1958]). Thus, although the parties must bargain to an impasse over mandatory subjects of bargaining before implementing unilateral changes, they may change permissive subjects unilaterally without bargaining and cannot be forced to bargain over such changes. Although most of the decisions an employer makes will affect employees, not all are mandatory subjects of bargaining. Som e deci- sions, such as advertising and product selection, bear such an indirect relationship to and have such a minimal effect on the employment relationship that they are almost certainly only permissive subjects of bargaining. Other deci- sions, such as those regarding hiring, layoffs, and plant rules, are so directly relevant to the employment relationship that they are almost certainly mandatory subjects of bargaining. Still other decisions are not aimed at the employ- ment relationship but have a sizable effect on it and are thus difficult to categorize as permissive or mandatory bargaining subjects (First National Maintenance Corp. v. NLRB, 452 U.S. 666, 101 S. Ct. 2573, 69 L. Ed. 2d 318 [1981] citing Fibreboard Paper Products v. NLRB, 379 U.S. 203, 85 S. Ct. 398, 13 L. Ed. 2d 233 (1964) [Stewart, J., concurring]). The Supreme Court has attempted on several occasions to define the scope of mandatory bargaining for this third category of management decisions. In Fibreboard, the Supreme Court held that under its three-part analysis, an employer’s decision to subcontract a portion of its opera- tions was a mandatory bargaining subject. First, subcontracting falls within the literal meaning of the NLRA phrase “terms and conditions of employment.” Second, determining that sub- contracting is a mandatory bargaining subject effectuates the purposes of the NLRA by “bringing a problem of vital concern to labor and management within the framework estab- lished by Congress as most conducive to industrial peace”—namely, collective bargain- ing. Third, other employers in the same industry have addressed contracting out in the bargaining process, rather than leaving it to managerial discretion. Justice POTTER STEWART added in his concurrence that subjects that “lie at the core of entrepreneurial control,” such as decisions about “the commitment of investment capital and the basic scope of the enterprise,” are not mandato- ry subjects of bargaining. In First National Maintenance, the Court addressed whether an employer’s decision to terminate certain operations entirely constituted a mandatory subject of bargaining. The Court, relying primarily on Justice Stewart’s concur- rence in Fibreboard, held that the decision to terminate all operations at a particular site was an economically motivated management deci- sion that was separate from the employment relationship, even though it obvi ously affected job security. The Court noted, however, that the effects of the employer’s decision, such as severance pay and benefits, were mandatory subjects of bargaining under section 8(a)(5) of the NLRA. Accordingly, under this Fibreboard- First National Maintenance framework, most significant economic decisions, such as plant shutdowns, layoffs, and relo cations, are not mandatory subjects of bargaining, even though the employer must engage in “effects bargain- ing” as a result of them. One area of ongoing conflict between unions and employers concerns when wage increases constitute mandatory subjects of bargaining. In Acme Die Casting v. NLRB (26 F.3d 162 [D.C. Cir. 1994]), the court of appeals analyzed the employer’s historical practice of establishing the frequency and size of wage increases and determined that whether to grant a wage increase was not an issue within the employer’s discretion and could not be decided without bargaining w ith the union. As of 2009, the U.S. Supreme Court had not resolved this issue of whether wage increases GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COLLECTIVE BARGAINING 519 were mandatory subjects of collective bargain- ing, so the federal courts of appeals have developed rules of their own to govern this question. Where an employer does not exercise discretion in determining the timing or the amount of a wage increase, the issue of wage increases is a mandatory subject for collec- tive bargaining (NLRB v. Beverly Enter Mass., Inc. 174 F.3d 13 [1st Cir. 1999]). Moreover, even if an employer exercises a certain amou nt of discretion in determining wage increase, such as an annual increase to cover the costs of living, this fact does not prevent the wage increase from becoming a mandatory subject if the company has a longstanding practice of grant- ing such pay increases (NLRB v. Pepsi-Cola Bottling Co., No. 00-1969, 2001 WL 7916 45 [4th Cir. July 13, 2001]). Once the parties have reached an impasse, the employer may implement unilateral changes to mandatory bargaining subjects as long as it has previously proposed those changes to the union (NLRB v. Plainville Ready Mix Concrete Co., 44 F.3d 1320 [6th Cir. 1995]; NLRB v. Emsing’s Supermarket, 872 F.2d 1279 [7th Cir. 1989]). Duty to Bargain in Good Faith During the bargaining process, the parties are not required by law to reach agreement. They must, however, bargain in good faith (29 U.S.C.A. § 158(d)). Although good faith is a somewhat subjective concept, courts will look to the entire circum- stances surrounding bargaining, including be- havior away from the bargaining table such as pressure and threats (NLRB v. Billion Motors, 700 F.2d 454 [8th Cir. 1983]). Most authorities agree that an absolute refusal to bargain constitutes BAD FAITH (Wooster). Even so, one party’s insistence on a certain contract term is not necessarily an unfair labor practice. The NLRB and the courts that review and enforce its orders are unw illing to substitute their judgment for that of the parties and will not judge the content of collective bargaining agreements (NLRB v. American National Insur- ance Co., 343 U.S. 395, 72 S. Ct. 824, 96 L. Ed. 1027 [1952]). In addition, the use of “ economic weapons” such as pressure tactics, PICKETING, and strikes to force bargaining concessions is not necessarily bad faith bar gaining (NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 80 S. Ct. 419, 4 L. Ed. 2d 454 [1960] ). The refusal to comply with an information request may constitute bad faith. For example, in NLRB v. Truitt Manufacturing Co. (351 U.S. 149, 76 S. Ct. 753, 100 L. Ed. 1027 [1956 ]), the employer committed an unfair labor practice when it refused to supply the union with information supporting its claim that it could not afford to pay a wage increase the union demanded. Over the years, courts have clarified that employers’ claims of an inability to pay requested wage increases are conceptually distinct from claims that wage increases will result in a competitive disadvantage (United Steelworkers of America v. NLRB, 983 F.2d 240 [D.C. Cir. 1993]). Accordingly, in Graphic Communications International Union Local 508 v. NLRB (977 F. 2d 1168 [7th Cir. 1992]), the court held that an employer was not required to disclose financial information unless it had asserted specifically that it was unable to pay a requested wage increase; an employer’s claim that a wage increase would lead to competitive disadvantage did not require it to disclose wage information. However, a refusal to provide requested information is not necessarily an unfair labor practice. For example, in Detroit Edison Co. v. NLRB (440 U.S. 301, 99 S. Ct. 1123, 59 L. Ed. 2d 333 [1979]), the Supreme Court held that an employer’s refusal to provide a union with confidential test results was not an unfair labor practice, where the company would have violated the right to privacy of the tested employees by disclosing the results. Unilateral Changes During the time a collec- tive bargaining agreement is in effect, the employer may not change a working co ndition that is a mandatory subject of bargaining, without first bargaining with the union (29 U.S.C.A. § 158[d]). Even after the collective bargaining agreement expires, the employer must maintain the STATUS QUO and may not unilaterally change mandatory subjects of bargaining, until the parties have reached an impasse (Louisiana DOCK Co. v. NLRB, 909 F.2d 281 [7th Cir. 1990]). This proscription against unilateral changes continues even if the em- ployer disputes that the union is the exclusive representative (Livingston Pipe & Tube v. NLRB, 987 F.2d 422 [7th Cir. 1993 ]; NLRB v. Parents & Friends of the Specialized Living Center, 879 F.2d 1442 [7th Cir. 1989]). Once good faith negotia- tions between the parties “exhaust the prospec t of concluding agreement,” the parties have reached an impasse, and implementing unilat- eral changes in working conditions does not GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 520 COLLECTIVE BARGAINING constitute an unfair labor practice (NLRB v. Plainville Ready Mix Concrete Co., 44 F.3d 1320 [6th Cir. 1995]; United Paperworkers Interna- tional Union v. NLRB, 981 F.2d 861 [6th Cir. 1992]; Southwest Forest Industry v. NLRB, 841 F.2d 270 [9th Cir. 1988]). A pre-impasse unilateral change to a mandatory subject of bargaining generally constitutes an unfair labor practice, even though employees may regard the change as beneficial. According to the Supreme Court, unilateral changes minimize the influence of collective bargaining by giving employees the impression that a union is unnecessary to achieve agree- ment with the employer. For example, in NLRB v. Katz (369 U.S. 736, 82 S. Ct. 1107, 8 L. Ed. 2d 230 [1962]), the employer unilaterally changed its sick leave policy and increased its wage rates without first bargaining over them with the union. The Court ruled that the employer’s unilateral change undermined the union’s ability to negotiate over sick leave, wages, and other terms of employment. One area of ongoing conflict between unions and employers concerns when wage increases constitute mandatory subjects of bargaining. In Acme Die Casting v. NLRB (26 F.3d 162 [D.C. Cir. 1994]), the court of appeals analyzed the employer’s historical practice of establishing the frequency and size of wage increases and determined that whether to grant a wage increase was not an issue within the employer’s discretion and could not be decided without bargaining with the union (see also Daily News of Los Angeles v. NLRB, 979 F.2d 1571 [D.C. Cir. 1992][remanding to NLRB to determine whether wage increases that are consistent in terms of timing but discretionary in terms of amount are considered mandatory subjects of bargaining]). FURTHER READINGS Aidt, Toke, and Zafiris Tzannatos. 2002. Economic Effects in a Global Environment. Washington, D.C.: World Book. Bagchi, Aditi. 2003. “Unions and the Duty of Good Faith in Employment Contracts.” Yale Law Journal 112 (May). CROSS REFERENCES Employment Law; Good Faith; Picketing COLLECTIVE BARGAINING AGREEMENT The contractual agreement between an employer and a labor union that governs wages, hours, and working conditions for employees and which can be enforced against both the employer and the union for failure to comply with its terms. Such an agreement is ordinarily reached following the process of collective bargaining. A h igh profile example of such bargaining happens in the world of professional baseball. COLLEGES AND UNIVERSITIES The term college is a general one that encom- passes a wide range of higher-education institu- tions, including those that offer two- to four-year programs in the arts and sciences, technical and vocational schools, and junior and community colleges. The term university specifically describes an institution that provides graduate and profes- sional education in addition to four-year post- secondary education. Despite these distinctions, the terms college and university are frequently used interchangeably in the United States. The first institution of higher education in the United States was Harvard College, founded in 1636. At the time of the Revolutionary War, nine colleges existed in the colonies—a number that had tripled by the time of the Civil War. In 1876, the first true university in the United States was established, with the founding of Johns Hopkins University in Baltimore. The university format rapidly gained pop ularity and prominent private and state-run college s soon assumed university status. The number of colleges and universities grows steadily. Accord- ing to the Statistical Abstract of the United States, 4,276 colleges and universities operated in the United States in 2005. In 1980, the total number was 3,231. U.S. colleges and universities fall into two general categories: private and public. Private institutions are usually corporations operating under state charters. Although tuition, private gifts, and end owments provide much of their financial support, most private colleges and universities also receive some government support. Many of the 2,000-plus private colleges and universities in the United States claim a religious affiliation. Public institutions are established either by state constitution or by statute, and they receive funding from state appropriations as well as tuition and endowments. The federal govern- ment operates several institutions of higher learning, such as the U.S. Military Academy and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COLLEGES AND UNIVERSITIES 521 A sample collective bargaining agreement. Collective Bargaining Agreement Master Agreement Between the Board of Education of Carroll County and the Carroll County Education Association (CCEA) 2005–2007 THIS AGREEMENT, entered into the first day of July 2005, by and between the BOARD OF EDUCATION OF CARROLL COUNTY, hereinafter called the “Board” and the CARROLL COUNTY EDUCATION ASSOCIATION, hereinafter called the “Association.” WITNESSETH: WHEREAS the Board and the Association recognize and declare that providing quality education for the children of Carroll County is their mutual aim; and WHEREAS the parties, following extended and deliberate negotiations, have reached certain understanding which they desire to memorialize. IN CONSIDERATION of the following mutual covenants, it is hereby agreed as follows: A. The Board recognizes the Association as the exclusive official negotiating organization for all certificated professional employees of the Board, excluding such employees with administrative and supervisory responsibilities as designated by the Board, with regard to all matters relating to salaries, wages, hours, and other working conditions. The Superintendent of Schools and the members designated by the Board to act as its representatives in negotiations are excluded. The recognition is in accordance with the provisions of Title 6, Subtitle 4 of the Education Article of the Annotated Code of Maryland (1978). ARTICLE I RECOGNITION Subject to the provisions of this Agreement, the Board reserves and retains full rights, authority, and discretion in the proper discharge of its duties and responsibilities to control, supervise, and manage the County Schools under existing law, rules, and procedures; and to determine the educational policies of the County School System; and to prescribe rules and regulations for the conduct and management of the public schools. ARTICLE II MANAGEMENT RIGHTS ARTICLE III GRIEVANCE PROCEDURE A. DEFINITIONS: 1. An “employee” is any certified professional person employed by the Board. 2. A “Grievance” is a claim based upon an event or condition which affects the terms and conditions of employment of an employee or group of employees, and/or the interpretation, meaning, or application of any of the provisions of this Agreement. 3. An “aggrieved employee” is the person or persons making the claim. 4. A “party in interest” is the person or persons making the complaint and any person who might be required to take action or against whom action might be taken in order to resolve the complaint. B. GENERAL PRINCIPLES: 1. The purpose of this procedure is to secure, at the lowest possible administrative level, equitable solutions to the problems which may from time-to-time arise affecting the welfare or working conditions of employees. Both parties agree that these proceedings will be kept informal and confidential at all levels of the procedure. 2. Nothing herein contained will be construed as limiting the right of any employee having a complaint to discuss the matter informally with any appropriate member of the administration and having the complaint adjusted without the intervention of the Association, provided the adjustment is not inconsistent with the terms of this Agreement as stated in A-2. 3. It shall be firm policy of the Board to assure every employee the unobstructed use of this grievance procedure without fear of reprisal or without prejudice in any manner in the employee’s professional or employment status. 4. Employees may seek and use the assistance of a designated representative of the Association at all levels of the grievance procedure. 5. Nothing contained in this grievance procedure shall be construed to deny any employee constitutional rights or rights under the laws of the State of Maryland. 6. The failure of a professional employee to proceed to the next step of the grievance procedure within the time limit set forth shall be deemed to be acceptance of the decision previously rendered and shall constitute a waiver of any future appeal concerning the particular grievance. ARTICLE IV MAINTENANCE OF STANDARDS All conditions of employment, including teaching hours, extra compensation for duties outside regular teaching hours, relief periods, leaves, and general teaching conditions shall be maintained at not less than the highest minimum standards in effect at the time this Agreement is signed, provided that such conditions shall be improved for the benefit of teachers as required by the express provisions of this Agreement. This Agreement shall not be interpreted or applied to deprive teachers of professional advantages heretofore enjoyed unless expressly stated herein. [continued] 522 COLLECTIVE BARGAINING AGREEMENT GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION Collective Bargaining Agreement ARTICLE V PERSONAL AND ACADEMIC FREEDOM A. The personal life of an employee is not within the appropriate concern or attention of the Board except as it may prevent the employee from properly performing assigned functions during the workday. B. All employees shall be entitled to full rights of citizenship, and no religious or political activities of any such employees or the lack thereof will be grounds for any discipline or discrimination with respect to their employment. C. The Board and the Association agree that academic freedom is basic to the attainment of Carroll County Public Schools and agree that: 1. In performance of their teaching functions, teachers shall be responsible to provide students opportunity to investigate all facets, sides, and/or opinions of and about any and all topics and materials introduced or presented and shall have a special responsibility to provide such opportunity with regard to those which are or may be of a controversial nature. Such materials presented to students must be relevant to the course and appropriate to the maturity level and intellectual ability of the students. The teacher shall further be responsible to permit the expression of the views and opinions of others and to encourage students to examine, analyze, evaluate, and synthesize all available information about such topics and materials and to encourage students to form their own views and opinions through such procedures. Teachers shall at all times strive to promote tolerance for the views and opinions of others and for the rights of individuals to form and hold differing views and opinions. ARTICLE XII PROTECTION OF TEACHERS A. The Board hereby assures teachers that it shall put its full support behind the discipline procedures and policies hereinafter recommended and adopted by the Board. The Board and the Association recognize a mutual responsibility for the enforcement of such policies. It is also agreed that such policies shall be enforced fairly and consistently without favoritism due to race, creed, color, sex, age, national origin, handicap, or religion. B. In any case of assault by a student or a non-student on school grounds on a teacher causing injury for which workers’ compensation and/or medical bills are paid, the Board shall pay the teacher the teacher’s regular salary during the period of compensable disability as determined by the Workers’ Compensation Commission not to exceed five (5) years, provided the teacher shall give the Board all allowances received for worker’s compensation because of the injury and, waives all medical bills after that date. ARTICLE XVII SICK LEAVE AND OTHER TEMPORARY LEAVES OF ABSENCE A. SICK LEAVE 1. Employees shall be granted one (1) sick day for each month of their contract year. The days granted shall be available as of the first official day of the school year or the contract, whichever is applicable. Employees who perform summer work which is an extension beyond the normal school year shall be granted one-half (½) day sick leave for each ten (10) days of such summer employment. 2. Sick leave may be accumulated to the maximum amount earned and may be carried over as of June 30, 1974. Teachers shall be given a written accounting of accumulated sick leave days no later than November 30 of each school year. 3. The Board may require proof of illness whenever there is a reasonable cause to believe that an absence is not due to a bona fide illness. 4. Family Illness Leave – Ten (10) days of accrued sick leave may be used to assist in the health care of persons who live in the employee’s household, or to care for a parent, a spouse, or a child regardless of their residence. B. PERSONAL BUSINESS LEAVE 1. Three (3) additional days per year shall be granted for personal business. Up to one (1) unused personal business day from the current school year will be carried over for a maximum of four (4) personal business days the following year. Any remaining unused personal business days shall be added to accumulated sick leave at the end of each school year. Employees may not use more than three (3) personal business days consecutively. C. BEREAVEMENT LEAVE In the case of death of persons defined below, an employee may receive leave for bereavement without loss of pay. If the funeral does not immediately follow the death, bereavement leave may be granted to coincide with the day of death and the funeral. This provision does not affect the total number of days which may be granted for bereavement leave. For purposes of this Agreement, the bereavement period will begin the day of death or the first day following death and run five (5) consecutive duty days, but not to exceed seven (7) calendar days for the death of a parent, foster parent, parent-in-law, child, spouse, sibling, daughter-in-law, son-in-law, or any member of the immediate household and three (3) consecutive duty days, but not to exceed five (5) calendar days for the death of an employee’s grandparent, grandchild, grandparent-in-law, brother-in-law, or sister-in-law. [Portions omitted for purpose of illustration] E. The employee must notify the principal or other appropriate personnel as far in advance as possible of a pending absence in order that proper arrangements can be made to cover the employee’s duties. F. Absence from duty at assigned position for the following reasons shall not be charged against B. above: 1. Time necessary for appearance in any legal proceeding connected with the employee’s employment. 2. When called to jury duty. 3. School evaluation committees. 4. Approved inter-school visitations. 5. Educational conferences attended with prior approval by the Assistant Superintendent of Instruction. [continued] A sample collective bargaining agreement (continued). COLLECTIVE BARGAINING AGREEMENT 523 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION A sample collective bargaining agreement (continued). Collective Bargaining Agreement ARTICLE XIX ACADEMIC LEAVE OF ABSENCE Upon recommendation by the Superintendent of Schools, sabbatical leaves shall be granted to a certified professional member of the teaching staff by the Board for study, including study in another area of specialization, for travel, or for other reasons of value to the school system, subject to the following conditions: A. If there are sufficient qualified applicants, sabbatical leave shall be granted to a maximum of one (1) percent of the negotiating unit at any one time. B. Request for sabbatical leave must be received by the Superintendent in writing in such form as the Superintendent may require no later than December 1, and action must be taken on all such requests no later than January 15, of the school year preceding for which the sabbatical leave is requested. C. The employee must have completed at least five (5) full school years of service in the Carroll County School System. D. An employee on sabbatical leave (either for one-half of a school year or for a full year) shall be paid by the Board at fifty (50) percent of the salary rate which the employee would have received if the employee had remained on active duty, provided that such employee agrees to return to the employee’s employment in the Carroll County School System for a period of no less than twice as long as the sabbatical leave. E. Upon return from sabbatical leave, an employee shall be placed on the salary schedule at the level which the employee would have achieved had the employee remained actively employed in the system during the period of the employee’s absence. When possible, the employee shall be returned to the employee’s previous position of employment. A. To the extent possible and within limits of the funds available, in existing buildings, and in all new buildings, the Board shall provide the following: 1. Separate dining tables for teachers. 2. Well-maintained, properly lighted and ventilated, safe and healthful classrooms. 3. Adequate, well-maintained playground space. ARTICLE XXII TEACHING CONDITIONS B. To the extent possible and within limits of the funds available, in existing buildings, and in all new buildings, the Board shall provide the following: 1. Space in each classroom in which teachers may safely store instructional materials and supplies. 2. An appropriately furnished room to be used as a faculty lounge. 3. Well-lighted and clean teachers’ rest rooms, separate for each sex and separate from the students’ rest rooms. 4. A two-way communication system between classrooms and school office. 5. Working, conference, and storage facilities for special instructional personnel. 6. Adequate off-street parking facilities shall be made available to all teachers. 7. Sinks for all primary grade classrooms. G. SMOKE-FREE WORKPLACE The Board of Education of Carroll County is committed to providing employees, students, and visitors with a safe and healthy environment. It is also in the educational interest of this Board to set a positive example by its actions. Smoking, secondhand smoke, and smokeless tobacco have been found to pose definite health hazards. As of September 3, 1991, tobacco use is not permitted in any Board indoor facility. This is meant to be sensitive to the needs of everyone in the Carroll County Public Schools. Employees eligible for incremental steps, shall receive one (1) incremental step increase at the beginning of the Agreement year. For the 2005–2006 and the 2006–2007 Agreement years, each step of all salary schedules shall be increased by a 3% COLA at the beginning of the Agreement year. This COLA adjustment is contingent on anticipated revenue. If the Board receives less than anticipated revenue for fiscal years 2006 and 2007, the Board and CCEA agree to renegotiate the provisions of this Agreement. A. All employees shall be paid 26 payments on a current basis during the year. B. A ten month employee may elect to have the balance due in the last June pay check. The request shall be submitted in writing prior to June 1. C. Increments may be earned only by teachers whose certificates are rated first class. *A teacher may advance only one (1) step on the schedule per year. D. Personnel employed for summer work, which is an extension beyond the normal school year, shall be reimbursed a sum based on their regular annual salary normally received in Classifications I, II, III, IV, V, provided such employment is properly authorized by the Superintendent of Schools and is not a part of a special summer school program for which salaries are set as described in particular federal or local projects. ARTICLE XXIII SALARIES H. SCHOOL IMPROVEMENT The Carroll County Education Association and the Board of Education of Carroll County will work cooperatively on the School Improvement process. [continued] 524 COLLECTIVE BARGAINING AGREEMENT GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION the U.S. Air Force Academy, but it is prohibited by statut e from exercising direct control over other educational institutions. The Legal Climate U.S. colleges and universities are governed by many of the same laws that regulate the rest of U.S. society. In addition, they have generated a unique bod y of law. Educational institutions reflect the leg al climate of the rest of the country, but the importance of a good educa- tion has elevated equal access, equal opportuni- ty, and ACADEMIC FREEDOM to a higher status than they might otherwise assume. Collective Bargaining Agreement E. CCEA will not object to the Board’s increasing starting salaries for teachers in Category III (and if necessary adjusting salaries for succeeding steps) in an amount to be determined by the Board. By entering into this Agreement CCEA does not waive its right to contest unilateral salary changes nor does the Board agree that such changes or payments are mandatory subjects of bargaining. F. In the event of a salary error, neither the Board of Education nor the employee may claim salary adjustments for any more than the current fiscal year. G. Information regarding longevities, educational add-ons, and other salary information is located on the salary schedule page (s) at the end of this Agreement. H. Employees who earn National Teacher Certification and receive a satisfactory or above rating, will be paid an additional annual stipend of $5,000. Hourly Rate 2005–2006 Part Time Evening $24.28 per hour Summer School $24.28 per hour Federal Employment $24.28 per hour Hourly Rate 2006–2007 Part Time Evening $25.01 per hour Summer School $25.01 per hour Federal Employment $25.01 per hour A. If any provision of this Agreement or any application of this Agreement to any employee or group of employees is held to be contrary to law, then such provision or application shall not be deemed valid and subsisting, except to the extent permitted by law, but all other provisions or applications shall continue in full force and effect. B. This Agreement constitutes Board policy for the term of said Agreement, and the Board shall carry out the commitments contained herein and give them full force and effect as Board policy. The Board shall amend its written policies and take such other action as may be necessary in order to give full force and effect to the provisions of this Agreement. C. A copy of this Agreement shall be provided for all professional personnel employed by the Carroll County Board of Education. The cost of printing the Agreement shall be shared jointly between the Association and the Board. D. In the event that either the Board or CCEA desires to waive certain sections of the contract during the contract year for a specific purpose or an individual situation, the following procedures will be used: 1. The Director of Personnel and the President of CCEA will review the proposed waiver, the rationale for its necessity, and its impact on the students of CCPS. 2. The conditions and duration of the waiver will be agreed to in writing by the Director of Personnel and President of CCEA. 3. Final approval of the waiver rests with the Superintendent of Schools. 4. Neither members of the bargaining unit nor the Association shall file a grievance or administrative appeal on behalf of a teacher who may be adversely affected by the agreed upon waiver of the contract. ARTICLE XXX GENERAL Unless otherwise provided herein, the provisions of this Agreement with the exception of Article XXVII, Insurance, Section A, shall be effective as of July 1, 2005, and will remain in full force and effect until June 30, 2007. Article XXVII, Insurance, agreed upon for this Agreement shall be effective on January 1, 2006 and will remain in full force and effect until December 31, 2006. In the event that the subcommittee charged with studying reducing the cost of health insurance reach agreement on a new health care plan design, both the Board and the Association agree to return to negotiate the recommendation in time for a January 1, 2006, implementation date. This Agreement is contingent on full funding by the County Commissioners of the Board of Education’s fiscal year 2006 and 2007 budgets. In the event said budget is not given final approval by July 1, 2005 or July 1, 2006, for the second year of the Agreement, the parties shall renegotiate the Agreement upon the request of either. Negotiations on a successor Agreement will begin on a date that is mutually agreed upon by each party. IN WITNESS HEREOF, the parties hereunto set their hands and seal this 13th day of April 2005. ARTICLE XXXIII DURATION A sample collective bargaining agreement (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. COLLECTIVE BARGAINING AGREEMENT 525 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION Three general types of laws affect the operation of colleges and universities. State laws affect public and private colleges and universi- ties in the absence of federal law s that supersede them. Federal laws may affect public and private institutions, and they usually affect entities that receive federal funding or that are subject to regulation under the COMMERCE CLAUSE of the Constitution. The most common such laws are statutes that prohibit DISCRIMINATION. Finally, the Constitution governs public, but almost never private, institutions. As state entities, public institutions must conform to constitut ional provisions that pro- hibit the state from discriminating and from denying constitutional rights. Thus, much of the law of public institutions stems from the following constitutional amendments. n The Free Speech Clause of the FIRST AMENDMENT , which guarantees that the government will not interfere with FREEDOM OF SPEECH n TheFreeExerciseClauseoftheFirst Amendment, which ensures that the gov- ernment will not interfere with or outlaw religious expression n The Establishment Clause of the First Amendment, which prohibits the govern- ment from endorsin g o r establishing a state RELIGION n The EQUAL PROTECTION Clause of the FOUR- TEENTH AMENDMENT , which guarantees that a state will enforce its laws equally with respect to all persons, with certain excep- tions n The Due Process Clause of the Fourteenth Amendment, which requires the state to provide certain procedural safeguards be- fore depriving an individual of a liberty or property interest. State-run institutions also are subject to state and often federal law. Private institutions are not governed direc tly by the Constitution. Instead, they are regulated solely by state and federal law. Since the mid- 1960s, federal laws enacted pursuant to Con- gress’s power to regulate interstate commerce have enabled the federal government to regulate much private university activity that the Con- stitution cannot reach directly. Such federal statutes often protect against discriminatory behavior not otherwise foreclosed by the Constitution, such as discrimination based on age or disability. Accordingly, a university may not discriminate merely because it is a private entity. The most important statutes governing the behavior of private universities are the same statutes regulating public accommodations, employment, and federally funded activities: n Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000a et seq., which prohibits discrimination on the basis of race by entities that receive federal funding n Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, national origin, gender, or religion, by entities employing a certain number of workers (generally 15) n Title IX of the Education Amendments of 1972 (codified in scattered sections of 7, 12, 16, 20, and 42 U.S.C.A.), which prohibits discrimination on the basis of gender by entities that receive federal funding n The Age Discrimination in Employment Act, 29 U.S.C.A. § 621 et seq., which prohibits employment discrimination on the basis of age against individuals betwee n the ages of 40 and 70 by entities employing a certain number of workers (generally 20) n The Americans with Disabilities Act of 1990, codified in scattered sections of 2, 29, 42, and 47 U.S.C.A., which prohibits discriminatio n on the basis of disabi lity in public ac commodations, transportation, In McLaurin v. Oklahoma (1950), the Supreme Court ruled that the University of Oklahoma could not force G.W. McLaurin, the school’s only African American graduate student, to sit in a hallway adjoining the classroom. UPI/CORBIS-BETTMANN. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 526 COLLEGES AND UNIVERSITIES and employment, by a wide range of privately owned entities n The Rehabilitation Act of 1 973, 29 U.S.C.A. § 701 et seq., which prohibits discrimina- tion on the basis of disability by entities that receive federal funding n The H igher Education Act, 20 U.S.C.A. § 403 et seq., which establishes federal financial aid programs and the conditions accompanying them The Education Department (until 1980, the Department of Health, Education, and Welfare) administers Title VI, Title IX, and the Higher Education Act. Racial Discrimination The Equal Protection Clause and Public Institutions The Equal Protection Clause of the Fourteenth Amendment prohibits a state from denying to individuals the equal protection of the laws. This clause requires, among other things, that a state and its instrumentalities may not treat members of different racial or ethnic backgrounds differently unless the discrimina- tory action is necessary to achieve a compelling government purpose and is narrowly tailored to satisfy that purpose. Despite the Fourteenth Amendment’s passage in 1870, public higher education in the United States remained legally segregated on the basis of race until the mid- 1950s. This DE JURE (i.e., legally sanctioned) SEGREGATION may be traced to a pre-Civil War decision by the Massachusetts Supreme Court upholding the legality of segregated schools in the heart of abolitionist territory (Roberts v. Boston, 59 Mass. [5 Cush.] 198 [1849]). After the Civil War, Congress outlawed SLAVERY and made discrimination by the state unconstitutional with the Thirteenth and Four- teenth Amendments to the Constitution. Not much changed, however, as states, obligated to provide all citizen s with equal protection of the laws, devised bifurcated educational systems that provided white citizens with one set of schools and black citizens with a supposedly parallel, but grossly underfunded and qualita- tively inferior, set of schools. These systems were approved by the U.S. Supreme Court as “separate but equal” in Cumming v. Board of Education of Richmond County, 175 U.S. 528, 20 S. Ct. 197, 44 L. Ed. 262 (1899). Public centers of higher education also remained segregated and unequal. Many states established dual systems of higher education. A number of states established whites-only flagship campuses with separate blacks-only campuses that received less funding and fewer resources; others simply refused to admit black students. In the early twentieth century, the National Association for the Advancement of Colored People ( NAACP) began its attack against segregated schools at the university level, where it won a series of cases that eroded the separate-but- equal principle. In the first of these cases, decided under the Equal Protection Clause, the U.S. Supreme Court ruled that a state could not avoid training qualified black law students by providing them tuition payments to out-of-state law schools rather than permitting them to attend an in-state school (Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208 [1938]). Next, in McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149 (1950), the court held that the University of Oklahoma could not force its only black graduate student to sit in a hallway adjoining the classroom in which a course was offered, nor co uld it require the student to sit behind a railing marked “Reserved for Col- ored.” Finally, in Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 111 4 (1950), the court In 1995, the Second Circuit Court of Appeals held that the City College of New York could reduce the term of Leonard Jeffries, a black studies professor and chairman at the school, based on an off-campus speech he made in 1992. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION COLLEGES AND UNIVERSITIES 527 . BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. COLLECTIVE BARGAINING AGREEMENT 525 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION Three general types of laws affect the operation of colleges. Evening $24 .28 per hour Summer School $24 .28 per hour Federal Employment $24 .28 per hour Hourly Rate 20 06 20 07 Part Time Evening $25 .01 per hour Summer School $25 .01 per hour Federal Employment $25 .01. union. As of 20 09, the U.S. Supreme Court had not resolved this issue of whether wage increases GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COLLECTIVE BARGAINING 519 were mandatory subjects of collective