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

nThe employer and the union are not required to reach agreement but must bargain inGOOD FAITH over mandatory subjects of bargaining until they reach an impasse.. nWhile a valid collectiv

REPRESENTATIVE, provided that the employ-ees’ representative has majority support in the bargaining unit

subjects of bargaining, include wages, hours, and other terms and conditions of employment

nThe employer and the union are not required

to reach agreement but must bargain inGOOD FAITH over mandatory subjects of bargaining until they reach an impasse

nWhile 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 is 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 cannotNEGOTIATEindividual 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 terms to any workers 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 exclusiveBARGAINING 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

exists between both employers (NLRB v Burns Security Service, 406 U.S 272, 92 S Ct 1571, 32

there is substantial continuity, 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 parties 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

518 COLLECTIVE BARGAINING

faith over mandatory subjects of bargaining,

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 standards for determining

whether a specific bargaining topic is

mandato-ry Generally, terms and conditions of

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 Some

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

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

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 obviously 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 relocations, are not mandatory subjects of bargaining, even though

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 with the union

As of 2009, the U.S Supreme Court had not resolved this issue of whether wage increases

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 amount 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 791645 [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

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 constitutesBAD 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 unwilling 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 bargaining (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

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 condition 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

unilaterally change mandatory subjects of bargaining, until the parties have reached an impasse (LouisianaDOCKCo 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 prospect

of concluding agreement,” the parties have reached an impasse, and implementing unilat-eral changes in working conditions does not

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

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 high 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 popularity and prominent private and state-run colleges 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 endowments 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

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

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

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

the U.S Air Force Academy, but it is prohibited

by statute 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 body of law Educational institutions reflect the legal climate of the rest of the country, but the importance of a good educa-tion has elevated equal access, equal

opportuni-ty, andACADEMIC FREEDOMto 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

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 laws 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

Constitution The most common such laws are statutes that prohibitDISCRIMINATION Finally, the Constitution governs public, but almost never private, institutions

As state entities, public institutions must conform to constitutional 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

AMENDMENT, which guarantees that the government will not interfere withFREEDOM

OF SPEECH

Amendment, which ensures that the gov-ernment will not interfere with or outlaw religious expression

Amendment, which prohibits the govern-ment from endorsing or establishing a state

RELIGION

nThe 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

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 directly

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:

nTitle 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

nTitle 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)

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

Act, 29 U.S.C.A § 621 et seq., which prohibits employment discrimination on the basis of age against individuals between the ages of 40 and 70 by entities employing

a certain number of workers (generally 20)

1990, codified in scattered sections of 2, 29,

42, and 47 U.S.C.A., which prohibits discrimination on the basis of disability in public accommodations, 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.

526 COLLEGES AND UNIVERSITIES

and employment, by a wide range of privately

owned entities

n The Rehabilitation Act of 1973, 29 U.S.C.A.

§ 701 et seq., which prohibits

discrimina-tion on the basis of disability by entities

that receive federal funding

§ 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 citizens 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

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 could it require the student to sit

Col-ored.” Finally, in Sweatt v Painter, 339 U.S 629,

70 S Ct 848, 94 L Ed 1114 (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

COLLEGES AND UNIVERSITIES 527