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Columbia College Chicago v. National Labor Relations Board

United States Court of Appeals, Seventh Circuit

February 2, 2017

Columbia College Chicago, Petitioner/Cross-Respondent,
National Labor Relations Board, Respondent/Cross-Petitioner.

          Argued November 29, 2016

         Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. Nos. 13-CA-073486, 13-CA-073487, 13-CA-076794, 13-CA-078080, 13-CA-081162, 13-CA-084369

          Before Bauer, Flaum, and Hamilton, Circuit Judges.

          Flaum, Circuit Judge.

         Petitioner Columbia College Chicago ("Columbia") seeks review of a National Labor Relations Board ("NLRB") order. The order required Columbia to engage in "effects bargaining" with the Part-Time Faculty Association at Columbia College Chicago ("PFAC") under the terms of the parties' collective-bargaining agreement ("CBA") regarding credit-hour changes to Columbia's performing-arts curriculum, and awarded bargaining expenses to PFAC. We grant Columbia's petition for review, and grant in part and deny in part the NLRB's application for enforcement. We thus enforce in part and vacate in part the Board's order, and remand for further proceedings.

         I. Background

         Columbia is a private, independent college that specializes in communication, media, and the arts. Since 1998, PFAC has served as the exclusive collective-bargaining representative for part-time faculty at Columbia, of which there were over 1, 200. PFAC and Columbia were parties to a CBA that, by its terms, was in effect from 2006 to August 31, 2010. The parties agreed to keep the 2006 CBA in place while they bargained for a successor agreement, and so the former was in effect at all times relevant to this case.

         The CBA contained several provisions that are pertinent to this appeal. First, the agreement had a management-rights clause permitting Columbia to make decisions about its educational, fiscal, and employment policies without first having to bargain with PFAC:

Columbia ... retain[s] all... rights ... inherent in the management of [Columbia]... except as specifically modified by this Agreement during its term. All the rights and responsibilities of Columbia ... shall be retained and exercised in [its] sole discretion including by way of example and not in any way limited to:
A. The right to plan, establish, terminate, modify, and implement all aspects of educa- tional policies and practices, including curricula; admission and graduation requirements and standards; scheduling;... and the ... reduction, modification, alteration ... or transfer of any job, department, program, course, institute, or other academic or non-academic activity and the staffing of the activity, except as may be modified by this Agreement.
B. The right to manage [Columbia] and direct [Columbia's] property, including fiscal and budgetary policy ..., except as may be modified by this Agreement.
C. The right to ... establish, modify, and discontinue rules and regulations ... relating to the performance of work, including workload, scheduling of work and its location ..., except as may be modified by this Agreement.

         Second, the CBA determined part-time faculty pay using two main variables: the number of credit hours a course carried and the total number of credit hours the faculty member had previously taught. The agreement contained a minimum-compensation schedule for three-credit-hour courses and provided that "[compensation for courses totaling other than three credits shall be prorated" accordingly. Minimum compensation for a given course increased as faculty accumulated credit hours from prior semesters. The CBA required Columbia to notify the instructor of a given course of any significant changes to the course.

         Finally, a section entitled "Entire Agreement, " also known as a "zipper clause, " stated:

The parties acknowledge that during the negotiations which resulted in this Agreement, each had the right and opportunity to make demands and proposals on any subject or matter ... and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this, the sole Agreement between the parties regarding wages, hours, and other terms and conditions of employment.

         By January 2010, PFAC and Columbia had begun negotiations for a successor CBA. The parties met weekly and kept a running list of contract items that were not in dispute and about which the parties planned to agree.

         In the spring of 2010, Columbia administrators reevaluated the school's curriculum. As part of that process, Columbia unilaterally decided to reduce the credit hours for ten courses in its School of Fine and Performing Arts, with the changes to take effect in the 2011-2012 academic year. Columbia notified part-time faculty members affected by these changes, but not PFAC.[1]

         In July 2010, PFAC filed an unfair-labor-practice charge regarding Columbia's refusal to bargain over the effects of its decision to reduce course credit hours in the Photography Department-a different department from the ones at issue in this case. The parties settled that charge on October 22, 2010.[2]

         Meanwhile, the negotiations over the successor CBA were still ongoing, and on October 27, 2010, Columbia sent PFAC a proposal that included a modified management-rights clause. The modified clause was similar to the 2006 clause, but proposed new language extending the clause to explicitly waive PFAC's right to bargain over the effects or impact of ...

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