By Lisa Milam-Perez, J.D. A private college unlawfully refused to engage in effects bargaining with the union representing its part-time faculty after it reduced the number of credit hours awarded for more than 10 different courses. The college failed to demonstrate that the effects of the credit-hour reduction were an inevitable consequence of its exercise of its permissible managerial decision under the contract’s management rights clause, a divided NLRB panel held (with Member Miscimarra dissenting). The majority also concluded that an award of negotiating expenses to the union was warranted in light of the employer’s bargaining misconduct (Columbia College Chicago, March 24, 2016). The relevant CBA included a management rights clause, as well as a salary schedule that “represents minimum compensation” for instructors teaching a three credit-hour course; compensation for courses totaling other than three credits would be prorated accordingly. The college decided to reduce the number of credit hours for 10 to 12 courses; it was undisputed that the management rights clause entitled the college to change the number of credit hours carried by a course without bargaining with the union. However, the union wanted to bargain over the effects of the credit-hour reductions. The college refused to negotiate unless the union first provided a proposal regarding the effects, and a list of unit employees affected by the credit-hour changes. Consequently, the Board found the college unlawfully failed to engage in effects bargaining by refusing to negotiate and also by setting unlawful preconditions to such bargaining. Fresno Bee inapplicable. In a lengthy dissent, Member Miscimarra argued that the college had no duty to bargain. Citing the standard set forth in Fresno Bee (2003), he said that any effects of the decision to alter the credit hours were the inevitable consequence of the college’s permissible exercise of managerial discretion under the management rights clause, “and there was no possibility of an alternative change because all such effects were compelled by the CBA.” But reliance on Fresno Bee was misplaced, the majority countered, since the college did not establish that, even if all of the effects of the credit-hour reductions resulted directly from its decision to make those reductions, there was no possibility of alternative changes in the faculties’ terms of employment that would have warranted bargaining. Citing just one possible example to show that the CBA did not automatically dictate all effects of the course-credit decision, the majority said there might have been numerous other possible bargainable alternatives, “perhaps even ones that the parties themselves did not perceive immediately.” No union waiver. Miscimarra also said the parties’ CBA “covered” the dispute, adhering to the “contract coverage” standard applied by the D.C. and Seventh Circuits. Specifically, the language in the management rights clause showed that the parties had already negotiated, and had agreed that the college would retain the right to make the decision at issue here. However, the majority pointed out that the Board has declined to adopt the contract coverage standard; instead, it consistently applies the “clear and unmistakable” waiver test. And while Miscimarra argued the union did waive the right to bargain over the effects of the disputed change (since every effect that the union identified as an issue about which it sought bargaining was controlled by the terms of the CBA), the majority rejected this premise, refusing to prejudge what could come to fruition as a result of good-faith bargaining. Reimbursement of bargaining costs. The majority also concluded that the union should be reimbursed for the negotiation expenses that it incurred in its futile effort to bargain with the college, which engaged in misconduct at the bargaining table and away from it. For one, the college inexplicably reopened bargaining issues that had been long deemed “not in dispute” after the parties had engaged in productive bargaining sessions for more than a year. The college’s previously cooperative posture changed on a dime the day after it received a copy of an unfair labor practice complaint issued by the regional director, at which point it informed the union it was discarding the comprehensive contract proposal that had been the result of six months of productive bargaining. Essentially, the employer submitted regressive bargaining proposals in direct retaliation for the union’s having engaged in protected activity (filing a Board complaint), thereby forcing the union to renegotiate already agreed upon terms and to expend resources to bargain anew on those issues. The college also refused to resume face-to-face negotiations with the union unless it either provided comments about the college’s proposal for a successor contract or make a counterproposal, a fruitless state of affairs that continued on for four months. This conduct amounted to an unlawful precondition to bargaining. Similarly, the college unlawfully conditioned bargaining over the effects of the course credit-hour changes on the union first providing a proposal regarding the effects, and a list of the union members affected by the changes. This went on for several months before the college finally relented and agreed to meet to discuss the changes. Also, while the union ceded the college’s right to make a host of decisions regarding a range of terms and conditions of employment, the college sought to obtain an even broader waiver in negotiations for a successor agreement, including a waiver of the right to engage in effects bargaining, despite consistent opposition from the union on this point. Here, the college was insisting on a waiver that “would have granted it unfettered control and left bargaining-unit employees with fewer rights and less protection than they would have under the Act without a contract,” the majority pointed out. The Board concluded this was nothing more than an effort to frustrate the bargaining process and to “undermine the Union’s representative role as envisioned by the statute.” The employer committed several violations away from the bargaining table too, which served to dissipate the union’s strength and resources. For example, on three different occasions, it refused to furnish the union with requested information, and it retaliated against the union president for her “aggressive union advocacy.” The unlawful conduct clearly delayed bargaining for both a successor CBA and a resolution of the effects bargaining issue, and resulted in unnecessary expenditures and delays to the union. Thus, reimbursement of negotiating expenses was warranted. However, the Board declined to award reimbursement of the union’s litigation expenses, to issue a broad cease-and desist order, or to impose a bargaining schedule as a remedy. For his part, Member Miscimarra argued that, even assuming the college committed an effects bargaining violation, its conduct could hardly be said to have “infected the core of a bargaining process to such an extent” as to warrant the extraordinary remedy granted here.
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