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Part-time Faculty Association at Columbia College Chicago v. Columbia College Chicago

United States District Court, N.D. Illinois, Eastern Division

November 9, 2017



          John J. Tharp, Jr. United States District Judge

         The plaintiff union brings this action to confirm an arbitration award resolving a grievance lodged by the union concerning the assignment of teaching duties to part-time faculty of the defendant college. The college seeks to vacate the award on the ground that it contravenes a ruling by the National Labor Relations Board (“NLRB”) as to the representation of some part-time faculty members at the school. The court resolves this clash between the authority of the arbitrator and the NLRB in favor of the NLRB, and so denies the motion to confirm the award and grants the motion to vacate it.

         I. BACKGROUND[1]

         This case presents another round in a continuing dispute over who represents a group of individuals who are employed by Columbia College Chicago (“CCC”) as both full-time staff and as part-time faculty. These individuals are referred to as “Full Time Staff Who Teach, ” or “FTST” for short. There is no dispute that, with respect to their staff duties, FTST are represented by United Staff of Columbia College (“USCC”). The dispute concerns representation of the FTST in connection with their work as part-time faculty. CCC maintains that the union that represents all (or virtually all) other part-time faculty (“PFAC”) represents FTST in their roles as part-time faculty but PFAC has maintained that FTST are not members of its bargaining unit, or any other.

         This dispute over who represents FTST in their role as part-time faculty is playing out in a number of different proceedings. Relevant to this case is an NLRB proceeding filed in February 2015 (Case 13-RC-146452) in which USCC originally sought a self-determination election for FTST. CCC opposed that petition, maintaining that no election was appropriate because PFAC already represented FTST as to their teaching duties. USCC subsequently changed its position to align with that of CCC, arguing that a self-determination election was only needed if the NLRB determined that FTST were not already members of PFAC. For its part, PFAC opposed the self-determination petition as well, but disputed that it represented the FTST. PFAC opposed any outcome resulting in representation for FTST because it would create a minority union to compete with PFAC for the representation of part-time faculty.

         In August 2016, after a twelve-day evidentiary hearing, the NLRB's Regional Director issued a “Decision and Order, ” ruling that the FTST qualify as “dual function” employees and are included in the PFAC bargaining unit in their capacity as part-time faculty. FTST are members of the bargaining unit, the Director concluded, because the PFAC collective bargaining agreement's (“CBA”) recognition provision provides that the bargaining unit includes “all part-time faculty members who have completed teaching at least one (1) semester at Columbia College Chicago.” Def.'s Cross-Mot. to Vacate Arbitration Award, Ex. 4 at 13, ECF No. 10-4. The Regional Director also concluded that language in the recognition provision that excluded representation of “full-time staff” only prevents PFAC from representing full-time staff employees in their capacity as staff members. Where such employees also teach part-time, the Director held, they fall within the PFAC bargaining unit description. Id. at 14. The Regional Director also concluded, with respect to any evidence of past practice of excluding FTST from PFAC, that “any agreement between the Employer and PFAC to exclude the petitioned-for group of employees [that is, FTST], in their capacity as part-time faculty, would be contrary to Board policy.” Id.

         Because he held that FTST were already represented by PFAC, the Regional Director dismissed the self-determination petition filed by USCC. Id. PFAC subsequently sought review of the Director's decision with the NLRB. On February 14, 2017, the NLRB denied PFAC's request for review and affirmed the Regional Director's dismissal of the petition. The NLRB's affirmance did not address the substance of the Regional Director's ruling but was predicated instead on the fact that “no party has argued that the petition should not have been dismissed.” Def.'s Resp. in Opp'n to Pl.'s Mot. for Conditional Inj. and Reply in Supp. of Its Mot. to Stay, Ex. A., ECF No. 22-1.[2]

         In the meantime, while its petition for Board review of the Regional Director's decision was pending, PFAC also filed a grievance under its CBA with CCC. The grievance alleged that CCC had violated various provisions of the CBA “by unilaterally adjusting and assigning seniority, tiering or credit history of employees including . . . . ‘FTST' . . . who teach as part of their full-time staff job description . . .” and because “[n]one of the so-called ‘FTST' or other persons similarly identified by the College . . . have paid the necessary union dues or agency fees to accrue or maintain seniority in the P-fac unit.” Mem. in Supp. of Def.'s Cross-Mot. to Vacate Arbitration Award, Ex. 3 at 1, ECF No. 33-3. CCC, not surprisingly, denied the grievance, and PFAC then sought arbitration of the grievance, as provided for by the CBA procedures. The parties dispute the scope of the issues submitted to the arbitrator, and that debate is addressed in Part II.B, below, but in this background summary, it suffices to note that PFAC expressly disclaimed any intention in seeking arbitration of its grievance in order “to ‘bypass' the administrative process regarding representation issues.” Id., Ex. 5 at 1.

         The arbitrator issued an award on January 11, 2017. Combined Pet. to Confirm Award under FAA and Compl. under LMRA, Exhibit A, ECF No. 1-1. The arbitrator ruled that, “as a matter of contract law, ” the CBA did not include FTST within the PFAC bargaining unit. Id., Ex. A at 4-5. The arbitrator concluded that this was “the core issue” presented by the grievance because “all of the other alleged contract violations . . . refer to bargaining unit membership.” Id., Ex. A at 4. In issuing his award, the arbitrator expressly acknowledged that the Regional Director had ruled that FTST “are already included in the PFAC unit in their capacity as part-time faculty and covered by the PFAC contract.” Id., Ex. A at 3. Nevertheless, the arbitrator concluded that the Director's ruling was not determinative of the “core” question of FTST membership in the PFAC bargaining unit because the Director's determination as to representation of FTST “necessarily turns on a benchmark different from the parties' mutual intent when they agreed to the unit description in Article 1 of their agreement.” Id., Ex. A at 4. Claiming that benchmark as his north star, the arbitrator concluded that “the parties did not intend to include these employees in the bargaining unit.” Id., Ex. A at 5.

         After the arbitrator issued his award, PFAC filed this action seeking to confirm the award and to compel CCC to abide by the injunctive terms of the award. CCC responded by filing a cross-motion to vacate the arbitration award. CCC maintains that the arbitration award cannot stand because it directly conflicts with the NLRB ruling that FTST are members of the PFAC bargaining unit. The award must be vacated, it argues, because the arbitrator infringed upon the NLRB's primary jurisdiction over representation issues, including but not limited to the unit placement of disputed employee categories. CCC also maintains that the arbitrator exceeded his authority in reaching the representation issue because that issue was not fairly subsumed within the grievance submitted by PFAC.

         Shortly thereafter, on February 2, 2017, CCC moved to stay proceedings in this matter pending the NLRB's review of the Regional Director's ruling (a motion that was mooted by the Board's affirmance of the Director's ruling on February 14, 2017). PFAC responded on February 6, 2017 with a motion seeking a “conditional” preliminary injunction requiring CCC to abide by the arbitrator's award pending resolution of its motion to confirm the award. PFAC's counsel subsequently clarified that this preliminary injunction motion was effectively PFAC's response to CCC's motion to stay and simply reflected that PFAC was seeking an expedited ruling on the merits of its motion to confirm the arbitration award. The parties agreed that the briefs on PFAC's preliminary injunction motion would stand as the briefs on PFAC's motion to confirm the award, [3] and submitted additional briefs on CCC's motion to vacate. The matter has therefore been fully briefed. No party has sought an evidentiary hearing.


         PFAC moves pursuant to § 9 of the Federal Arbitration Act (“FAA”) to confirm the arbitration award so that it may be enforced.[4] CCC moves pursuant to § 10(a)(4) of the FAA to vacate the award. The court has jurisdiction over this matter pursuant to Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, and under the federal question jurisdiction provided by 28 U.S.C. § 1331.

         To begin, PFAC is unquestionably correct when it observes that judicial review of labor arbitration awards is limited. Section 173(d) of the LMRA provides that “[f]inal adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.” United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37 (1987). Accordingly, “[c]ourts are not authorized to review the arbitrator's decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement.” Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 509 (2001). As a general matter, “[t]he refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.” United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 596 (1960).Because the parties “bargained for the arbitrator's construction of their agreement, an arbitral decision even arguably construing or applying the contract must stand, regardless of a court's view of its (de)merits.” Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 133 S.Ct. 2064, 2068 (2013) (citing E. Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62 (2000)) (internal quotations omitted).

         That said, it is also incontrovertible that an arbitration award may be set aside where it conflicts with a decision by the NLRB or the arbitrator has exceeded his authority under a controlling collective bargaining agreement. See, e.g., Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 272 (1964); Advance Cast Stone Co. v. Bridge, Structural and Reinforcing Iron Workers, Local Union No. 1, 376 F.3d 734, 743 (7th Cir. 2004); see also 9 U.S.C. § 10(a)(4).Nor may a court enforce an arbitration award that is contrary to public policy. W.R. Grace and Co. v. Local Union 759, Int'l Union of United Rubber, Cork, Linoleum and Plastic Workers of Am., 461 U.S. 757, 766 (1983). The arbitration award at issue in this case is unenforceable for all of these reasons.

         A. Primary Jurisdiction: The award contravenes the NLRB's ruling that FTST “are represented by . . . PFAC.”

         CCC contends that, in deciding that FTST are not part of the PFAC bargaining unit, the arbitrator exceeded his legal authority because the award infringes on the NLRB's primary jurisdiction over representation issues involving the interpretation of the NLRA. “Questions of representation under section nine of the National Labor Relations Act, 29 U.S.C. § 159 (1982), are matters for the National Labor Relations Board.”[5] Int'l Union of Operating Eng'rs, Local Union v. Associated Gen. Contractors of Ill., 845 F.2d 704, 709 (7th Cir. 1988). And where the Board decides a representational issue, that decision necessarily takes precedence over an arbitration award on the same issue: “Should the Board disagree with the arbiter, by ruling, for example, that the employees involved in the controversy are members of one bargaining unit or another, the Board's ruling would, of course, take precedence; and if the employer's action had been in accord with that ruling, it would not be liable for damages under § 301.” Carey, 375 U.S. at 272.

         As the Seventh Circuit explained in Yellow Freight Sys., Inc. v. Auto. Mechanics Local 701 Int'l Ass'n of Machinists, AFL-CIO, “Carey holds that while unit determination may be arbitrable in the first instance, because the decisions of the NLRB take precedence, and therefore should the initial arbitration award conflict with a later NLRB determination on the same question, the NLRB determination prevails and the initial award must fall. This ruling thus reaffirms the ultimate position of control of the NLRB when dealing with decisions construing the National Labor Relations Act.” 684 F.2d 526, 529 (7th Cir. 1982). In Yellow Freight, the dispute involved which of two unions would represent workers at a new facility. One union filed a representation petition with the NLRB seeking a representation election or, alternatively, an amalgamation of new employees at the facility into its existing bargaining agreement with Yellow Freight. The NLRB rejected amalgamation and ordered an election. The union then filed a grievance premised on Yellow Freight's refusal to apply its CBA to the new workers. Yellow Freight sought an injunction against the grievance arbitration, arguing that any decision by the arbitrator would implicate the subject of representation and would therefore be moot in light of the NLRB's rejection of amalgamation and ordering of an election. The Seventh Circuit agreed, holding that any arbitration award would be unenforceable: “since there has been a ruling by the NLRB in this case on the issue of unit clarification, and because we reaffirm that any ruling by the NLRB takes precedence over any potential decision by an arbitrator on the same issue, we decline to compel arbitration of a grievance the substance of which has previously been decided by the NLRB.” Id. at 530. The primacy of the Board's representation determination dictates the same result in this dispute.

         Other circuit decisions confirm the NLRB's primary jurisdiction over issues that implicate representation.[6] In Smith Steel Workers v. A. O. Smith Corp., 420 F.2d 1, 7 (7th Cir. 1969), for example, the Seventh Circuit ruled that the district court was correct in refusing to compel arbitration of a unit representation issue after its determination by the NLRB. Relying on Carey, the court of appeals held that “[a]rbitration provides an alternative means of resolving disputes over the appropriate representational unit, but it does not control the Board in subsequent proceedings. . . . The Board's . . . determination of the appropriate units fully disposed of the question.” Id. Further, the court of appeals noted that the representation determination “defined the lawful limits of coverage of the contract which the Union sought to have enforced under Section 301(a) of the Labor Management Relations Act.Id. (emphasis added). That is to say, the Board's representational decision also controlled any argument based on contract law. Under these circumstances, the court held, the district court “could compel neither arbitration nor enforce any arbitrator's award in conflict with the Board's order.” Id. Cases in other circuits are to the same effect. See Local Union 204, Int'l Bhd. of Elec. Workers v. Iowa Elec. Light & Power Co., 668 F.2d 413, 419 n.11 (8th Cir. 1982) (courts have consistently refused to order arbitration where the Board had previously resolved the dispositive representational issue).

         PFAC does not meaningfully contest the proposition that Board rulings trump inconsistent arbitral awards. Its assertion that “[s]o long as an arbitrator was at least arguably interpreting the contract, there is no basis for a court to vacate his decision, ” Pl.'s Brief in Supp. of its Mot. for a Prelim. Inj. and in Opp'n to Def.'s Mot. to Stay 2, ECF No. 25, is simply wrong; an arbitration award that is inconsistent with an NLRB ruling as to a matter within its authority under the NLRA cannot be enforced. PFAC's briefs do not take on Carey or Yellow Freight or other precedent invalidating or enjoining arbitration on an issue that has already been addressed by an NLRB ruling.[7] The only argument PFAC makes on the subject of the Board's primary jurisdiction is that the Board's jurisdiction to decide representational issues is not exclusive. That is correct, but irrelevant; both Carey and Yellow Freight explained that the Board's primary jurisdiction does not preclude submission of a representation dispute to an arbitrator, but rather simply assures that, where the Board's resolution of that issue conflicts with that of the arbitrator, “the Board's ruling would, of course, take precedence.” Carey, 375 U.S. at 272. PFAC's reliance on International Union, United Automobile, Aerospace and Agricultural Implement Workers of America and Its Amalgamated Local Union No. 1369 v. Telex Computer Prods., Inc., 816 F.2d 519, 525 (10th Cir. 1987), which holds only that “[m]atters touching on union representation, in the context presented here, are within the concurrent, not exclusive jurisdiction of the NLRB, ” to rebut CCC's primary jurisdiction argument is misplaced for this reason. CCC does not contend that the Board's primary jurisdiction would bar an arbitrator from ever addressing whether FTST are members of the PFAC bargaining, but only when the Board had already decided that issue. In that case, the primary jurisdiction doctrine requires arbitral deference to the Board's decision.

         Here, there is no question that the arbitration award is inconsistent with the NLRB's ruling as to FTST's membership in the PFAC bargaining unit. In denying the representation petition, the NLRB expressly held that FTST are members of the bargaining unit: “In the instant case, employees in the petitioned-for group are already included in the PFAC unit in their capacity as part-time faculty and covered by the PFAC contract.” Def.'s Cross-Mot. to Vacate Arbitration Award, Ex. 4 at 13, ECF No. 10-4. The arbitrator concluded that they are not: “FTST employees [are] non-members of the bargaining unit.” Combined Pet. to Confirm Award under FAA and Compl. under LMRA, Exhibit A at 5 n.6, ECF No. 1-1. Under the Board's primary jurisdiction, the inconsistent arbitration award cannot stand.

         The arbitrator explained his contrary ruling concerning PFAC's representation of FTST as an exercise in contract interpretation. PFAC picks up that mantle by arguing that “[t]he arbitrator took care to limit his ruling to a contract interpretation and to not infringe on the authority of the Labor Board to make findings as to what may be an appropriate bargaining unit.” Pl.'s Mtn. for a Conditional Inj. 7, ECF No. 19. That contention is difficult to credit. While the arbitrator certainly limited the rationale for his ruling to his interpretation of the CBA, in doing so he did not “take care” to avoid infringing the NLRB's authority; he explicitly disregarded that authority by ignoring the NLRB's contrary ruling. Combined Pet. to Confirm Award under FAA and Compl. under LMRA, Exhibit A at 4 n.3, ECF No. 1-1. Understanding that a labor arbitrator's role is limited to interpreting the parties' collective bargaining agreement, and that some elements of the Director's Decision and Order could require interpretation, [8] one would nevertheless expect that, in order to arbitrate a grievance between an employer and a bargaining unit, an arbitrator would have to consider and defer to a clear ruling by the NLRB as to which employees the bargaining unit represents. But here the arbitrator instead substituted his own, contrary, determination of which employees were within the unit because, in his view, the Director's determination turned “on a benchmark different from the parties' mutual intent . . . .” Id., Ex. A at 4. If that passes as respect for the NLRB's ...

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