November 29, 2016
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,
Bauer, Flaum, and Hamilton, Circuit Judges.
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
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.
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.
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.
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.
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.
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.
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,
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 ...