Facts About Unions and Collective Bargaining Agreements

1. Union Security

This is a provision that requires an employee to pay union dues or an agency fee as a condition of continued employment, with the employer being contractually bound to terminate an employee who does not make these payments. Many, but not all union contracts in Massachusetts have union security provisions—as did the collective bargaining agreement negotiated by the BAC adjunct faculty member when they were at the Art Institute of New York City. HGSU took a different approach, allowing graduate students teaching at Harvard to choose whether to join the union and pay dues. You may inquire with the BAC adjunct faculty member which approach they prefer and whether the union would permit the BAC faculty to take the same approach as HGSU. However, even if they choose not to join the union, the collective bargaining agreement negotiated by the union governs their terms of employment. The relevant language from the two contracts is below.

AiNYC – Article 6.1-6.4
Article 6
Union Security

1. It shall be a condition of employment that every Employee who is a member of the Union in good standing as of the date of execution of this Agreement shall remain a member in good standing.
2. Those Employees who are not members on the date of execution of this Agreement shall become and remain members in good standing of the Union no later than thirty (30) days following the date of execution of this Agreement.
3. After the date of execution of this Agreement every newly hired Employee will become a member of the Union within thirty (30) days after the date of employment and thereafter will remain a member in good standing.
4. Whenever the Union charges that any Employee who is required by the provisions of this Article to become or remain a member of the Union in good standing has failed to do so, and requests the discharge of such Employee, the Employer shall be so informed by the Union by certified or registered mail. The Employer shall have fourteen days following the receipt of such notice to take action on the requested discharge. If during the fourteen-day period the Employee shall pay his or her delinquent dues, the Employer shall not be required to discharge such Employee.

Harvard University – Article 33.1-33.2 
ARTICLE 33 
UNION SECURITY

Section 1. SWs are free to decide whether or not they wish to join the Union and pay membership dues and fees. The University shall not coerce or otherwise attempt to influence a SW about their decision to join or not join the Union and pay or not pay membership dues and/or fees.

Section 2. Every SW will be given the choice to affirm choosing to join the union or not for each appointment period, or if already a member, if they wish to opt out. There will be no fee or further consequences for the SW who chooses not to join the union.
The Union will draft a letter to be reviewed by the University to be sent to the SW if they fail to make a choice within 30 days of their employment appointment letter.
This will be implemented as soon as possible following discussions between the University and the Union.

2. Management Rights

This is a provision that identifies rights that the parties have agreed remain vested in the employer. In both of the collective bargaining agreements the BAC adjunct faculty member cites the employer retained many rights that could significantly impact the employment of the faculty members and graduate students covered by the agreements, including the right to promulgate and enforce reasonable rules, assign courses to be taught, and to discontinue business or operations in whole or in part. These and many more rights are enumerated in the Management Rights article in the two contracts, which you can review below.

AiNYC
Article 33
Management Rights

1. The management and operation of the School and the direction of the work force are vested exclusively with the Employer and, except as limited by specific provisions of this Agreement; the Employer shall continue to have all sole and exclusive rights customarily reserved to Management. It is expressly understood that the exercise of these rights by Management must be in accordance with applicable laws. These rights shall be considered an acknowledged function of Management:
   
   1. To hire, discipline, suspend, discharge, lay off and promote.
   2. To promulgate and enforce reasonable rules and regulations.
   3. To assign to the Faculty courses, class schedules, and other reasonable academic duties subject to the provisions of this Agreement.
   4. To introduce new or improved methods, equipment or facilities.
   5. To expand or discontinue business or operations in whole or in part and to determine the location and work to be performed at School facilities.
2. The enumerated rights of Management above are not all-inclusive but rather are illustrative of the types of matters where rights shall belong solely to or are inherent in Management.

Harvard University
ARTICLE 17
MANAGEMENT RIGHTS

Section 1.  All management functions, rights, and prerogatives, that have not been expressly modified or restricted by a specific provision of this Agreement, are retained and vested exclusively in the University and may be exercised by the University at its sole discretion. Such management functions, rights, and prerogatives include the right:

1. to determine, establish, direct, and control the University's mission, objectives, priorities, organizational structure, programs, services, activities, operations and resources;
2. to recruit, appoint and transfer unit members and to determine and modify the size and composition of the work force;
3. to determine or modify the qualifications and responsibilities of unit members;
4. to direct, assign, schedule and otherwise supervise unit employees:
5. to train unit members subject to Article 11, Training;
6. to establish new job classifications within the unit, subject to any restrictions in Article 2, Titles and Classifications;
7. to establish and modify standards of conduct and to discipline or discharge unit members for just cause subject to Article 19, Discipline and Discharge;
8. to establish and modify the processes and criteria by which unit members will be evaluated in their work performance;
9. to establish and modify rules, regulations and policies;
10. to alter, extend, or discontinue existing equipment, facilities, and location(s)of operations;
11. to determine the academic calendar each year;
12. to determine class and section size;
13. to subcontract all or any portion of any operations;
14. to take such action as is necessary to maintain the University's efficiency and effectiveness, including determining the means, methods, personnel, budgetary and financial procedures by which the University’s programs, services, and operations are to be conducted.
15. to determine and modify tuition and fees for all programs in which unit members are based and all matters affecting financial aid;
16. to determine and modify policies and financial costs and charges associated with University housing;
17. to determine and modify what benefits will be offered to students, including health, dental, vision and other medical insurance and prescription drug policies, and to determine the student costs for such coverage;
18. to select all insurance carriers and to change carriers from time to time;

Section 2. Other questions of academic judgment and decision-making shall remain in the University’s sole discretion and over which the University has no obligation to bargain. These include, but are not limited to, judgments and decisions regarding all matters affecting:

1. student admissions:
2. academic standards, and unit members’ progress as students, including but not limited to the completion of degree requirements;
3. who is taught, what is taught, how it is taught and who does the teaching;
4. research methodology and materials;
5. external grants including application, selection, funding, administration, usage, accountability and termination;
6. the creation, elimination or modification of courses and curriculum;
7. instructional methods;
8. the content of courses, instructional materials, the nature and form of assignments required including examinations and other work;
9. grading policies and practices;
10. all other academic policies, procedures, rules and regulations in regard to unit members’ status as students, including, but not limited to, all questions of academic standing, intellectual integrity, and any matter relating to academic progress in a University educational program;

Section 3. Any exercise of management rights shall be consistent with the terms and conditions of this Agreement. No action taken by the University with respect to a management or academic right shall be subject to the Grievance and Arbitration Procedures unless the exercise of such right violated an expressly written provision of this Agreement.

Section 4. The above enumeration of management and academic rights is not exhaustive and does not exclude other management or academic rights not specified above. The University, in not exercising any function hereby reserved to it in this Article, or in exercising any such function in a particular way, will not be deemed to have waived its right to exercise such function or preclude the University from exercising the same in some other way.

3. Layoffs

It is ironic that the BAC adjunct faculty member refers to job security provisions in the Art Institute of New York City collective bargaining agreement since the school closed with all employees losing their jobs. That said, we note the collective bargaining agreement provides a process for laying off faculty and calls for severance pay for laid off faculty members ranging from one to three months based on the faculty member’s length of service. (see Articles 23 and 19 below) The Harvard contract does not expressly mention layoffs but does reserve to the university the right “to determine and modify the size and composition of the work force,” “to determine class and section size,” and “to subcontract all or any portion of any operations.” (see Article 17 above) The Harvard collective bargaining agreement does not provide severance pay.

AiNYC
Article 23
Layoff, Recall and Work Jurisdiction

1. Layoff If the Employer finds it necessary to lay off any full-time Employee(s), the following shall apply: At least forty-five days prior to the date of layoff, the Union shall be notified of the impending layoff(s) and the reasons therefore. Upon the Union’s request, following such notice, the Union and Employer shall meet within five (5) days to discuss ways to minimize or avoid the impending layoff(s). If layoff(s) cannot be avoided, the order of any layoff(s) shall be: 1. Part-time Faculty in reverse seniority order, provided the remaining Faculty Members are qualified to do the work required; 2. Full-time Faculty in reverse seniority order, provided the remaining Faculty Members are qualified to do the work required.30If the Employer finds it necessary to reduce the teaching load or to lay off a part-time Instructor from one quarter to the next, reverse seniority shall prevail, provided the remaining Faculty Members are qualified to do the work required. Part-time Instructors whose teaching loads are changed from one quarter to the next or who are laid off shall be given at least two weeks [sic] notice of the intended change.
2. Recall Laid off Faculty Members shall be placed on a recall list with priority for recall to comparable positions as they become available. Recall shall be in the following order: 1. Full-time Faculty in seniority order, who are qualified to do the work required; 2. Part-time Faculty in seniority order, who are qualified to do the work required. A full-time Faculty Member has a right to be recalled to a comparable full-time position for which he or she is qualified. A part-time Faculty Member has a right to be recalled to a comparable part-time position for which he or she is qualified. Full-time Employees awaiting recall who notify the Employer in writing that they will accept recall to part-time position(s) or to non-comparable full-time position(s) until a comparable full-time position is available shall be recalled to such part-time or non-comparable full-time position(s) without waiving their right to be recalled to a comparable full-time position. Part-time Employees awaiting recall who notify the Employer in writing that they will accept recall to full-time position(s) or to non-comparable part-time position(s) shall be recalled to such position(s) after full-time Employees without waiving their right to be recalled to a comparable part-time position. Part-time Employees whose teaching loads were reduced from the previous quarter shall have their teaching loads restored in seniority order provided they are qualified to do the work required. 
3. Work Jurisdiction Instruction will be provided to students of The Art Institute of New York City exclusively by bargaining unit personnel except in emergency situations such as the unanticipated absence of an Instructor, unless the Union grants express written permission otherwise. Any such permission shall be limited to the specific instance for which granted and shall be non-precedent-setting. The Union will not unreasonably withhold permission for AiNYC supervisors and industry celebrities to participate in occasional unique educational sessions of limited scope and duration.

AiNYC
ARTICLE 19
Severance

1. A full time Faculty Member shall be deemed severed if s/he has been laid off for lack of work based upon seniority or if s/he had an involuntary status reduction and chooses to resign instead of taking an involuntary status reduction.
2. The Employer agrees to provide severance pay to those eligible under paragraph 1 above based on the following conditions:
   1. A severed Faculty Member may either choose to receive severance pay as described below or choose to remain on the recall list. Within eighteen months, a faculty member who chooses to remain on the recall list may choose to remove his/her name from the recall list and receive severance pay. AiNYC shall notify the individual Faculty Member in writing at least two weeks prior to the last day of employment.
   2. Faculty Members with at least one (1) year of seniority but less than five (5) years of seniority on their last day of work, will receive severance equal to one month’s salary. Faculty Members with five (5) years, but less than ten (10) years of seniority on their last day of24work, will receive severance equal to two months’ salary. Faculty Members with ten (10) or more years of seniority on their last day of work, will receive severance equal to three months’ salary. If a Faculty Member is severed during the first year of employment, but after the probationary period, severance will equal one-half month’s (11 days) salary. Those full time Faculty Members permanently laid off who will lose their jobs as a result of the decision to shut down the “Closing Programs” shall be entitled to Severance Pay in accordance with this Article 19, but the term “one month’s salary” for each such Faculty Member shall be based upon the Faculty Member’s placement on the 4 class or 5 class grid as of September 7, 2012, or as of October 1, 2012, whichever is the higher salary.
3. If employment is terminated due to a voluntary resignation, for just cause or because the Faculty Member no longer meets the requirements of Article 22, Paragraph 3, no severance benefits will be paid. The phrase “or because the Faculty Member no longer meets the requirements of Article 22, Paragraph 3”, shall not be used to deny severance to those Faculty Members being permanently laid off solely as a result of the decision to shut down the “Closing Programs”.
4. Any outstanding advances or money owed to the School, for any reason, will be deducted from the severance payment. In addition to severance payments, the Faculty Member shall be paid his/her accrued, but unused vacation in a lump sum.
5. All School property must be returned before the severance payment is issued.
6. All Faculty Members leaving the School on a voluntary basis are expected to give two weeks’ notice to their supervisor.
7. As a condition of receiving severance, a Faculty Member must waive any right to recall and execute a release in the form acceptable to the Employer.
8. Medical Insurance and COBRA: Faculty Members shall continue to receive medical and/or dental insurance until the end of the month of the effective date of permanent layoff. Thereafter, Faculty Members shall be eligible for continued coverage under the terms and conditions under federal COBRA law.

4. Discipline and Discharge

Both collective bargaining agreements express a commitment to progressive discipline and to the principle that the employer will discipline and discharge employees only for “just cause.” The Architectural Workers United union, which is one of the unions the BAC adjunct faculty member says they are consulting with about organizing the BAC faculty is affiliated with the International Association of Machinists and Aerospace Workers. Here is an article they link to on their website as a resource explaining just cause. As you can see, the concept boils down to whether an employer can answer “yes” to the following questions:

1. Did the company give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?
2. Was the company’s rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company’s business and (b) the performance that the company might properly expect of the employee?
3. Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?
4. Was the company’s investigation conducted fairly and objectively?
5. At the investigation did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?
6. Has the company applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?
7. Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the employee’s proven offense and (b) the record of the employee in his service with the company?

As you likely know, we rarely have occasion at BAC to discipline or discharge faculty members. However, when we do, we are guided by the principles underlying this definition of just cause and we typically apply progressive discipline when addressing faculty performance and conduct issues.

5. Course Assignments

The Art Institute of New York City collective bargaining agreement required the school to transfer current qualified faculty to any open positions before it could hire new faculty members. It also gave full time faculty members preference for these opening over part-time members, with seniority being the determinative factor among faculty with the same full- or part-time status. (See Article 22 below) The Harvard University collective bargaining agreement provides the university far greater flexibility, allowing it to “direct, assign, schedule and otherwise supervise” the graduate students. (See Article 17 above)

AiNYC
Article 22
Assignments and Transfers

1. All vacancies within the bargaining unit shall be posted internally for two (2) weeks. The posted notice shall indicate the time of the class, subject and status of the posted position. The “times of classes” for scheduling purposes are: weekday a) mornings or b) afternoons or c) evenings; or d) weekends.
2. Before a new Faculty Member is hired for any bargaining unit position, qualified current Faculty applicants will be transferred to open positions. Full-time applicants shall be given preference over part-time applicants. Seniority shall be determinative among applicants for a position who have the same Employee status.
3. Faculty must be qualified to teach the courses and do the work assigned hereunder. Where the State of New York and/or accrediting bodies of AiNYC require specific credentials as a qualification to teach a particular course, only Faculty who possess the minimum credentials required by the State and/or accrediting bodies (as set forth in their official publications made available to Faculty by the Employer) shall be deemed qualified to teach the particular course.
4. New Full-time positions will be created and posted at the discretion of the Employer based on enrollment, budget and educational considerations, except those posted in accordance with Article 8 A.