In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16‐2080 & 16‐2026
COLUMBIA COLLEGE CHICAGO,
Petitioner/Cross‐Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent/Cross‐Petitioner.
____________________
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
____________________
ARGUED NOVEMBER 29, 2016 — DECIDED FEBRUARY 2, 2017
____________________
Before BAUER, FLAUM, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. Petitioner Columbia College Chi‐
cago (“Columbia”) seeks review of a National Labor Relations
Board (“NLRB”) order. The order required Columbia to en‐
gage in “effects bargaining” with the Part‐Time Faculty Asso‐
ciation at Columbia College Chicago (“PFAC”) under the
terms of the parties’ collective‐bargaining agreement (“CBA”)
regarding credit‐hour changes to Columbia’s performing‐arts
2 Nos. 16‐2080 & 16‐2026
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 re‐
mand 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 edu‐
cational, fiscal, and employment policies without first having
to bargain with PFAC:
Columbia … retain[s] all … rights … inherent in
the management of [Columbia] … except as spe‐
cifically modified by this Agreement during its
term. All the rights and responsibilities of Co‐
lumbia … 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‐
Nos. 16‐2080 & 16‐2026 3
tional policies and practices, including curric‐
ula; admission and graduation requirements
and standards; scheduling; … and the … reduc‐
tion, 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 di‐
rect [Columbia’s] property, including fiscal and
budgetary policy …, except as may be modified
by this Agreement.
C. The right to … establish, modify, and dis‐
continue 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 car‐
ried 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 pro‐
vided that “[c]ompensation for courses totaling other than
three credits shall be prorated” accordingly. Minimum com‐
pensation for a given course increased as faculty accumulated
credit hours from prior semesters. The CBA required Colum‐
bia 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:
4 Nos. 16‐2080 & 16‐2026
The parties acknowledge that during the nego‐
tiations 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 ar‐
rived 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 negoti‐
ations 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 reevalu‐
ated the school’s curriculum. As part of that process, Colum‐
bia 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. Colum‐
bia notified part‐time faculty members affected by these
changes, but not PFAC.1
In July 2010, PFAC filed an unfair‐labor‐practice charge re‐
garding Columbia’s refusal to bargain over the effects of its
decision to reduce course credit hours in the Photography De‐
partment—a different department from the ones at issue in
this case. The parties settled that charge on October 22, 2010.2
1 The 2006 CBA did not require Columbia to notify PFAC of such
changes, only the individually‐affected faculty members.
2 As part of the settlement, Columbia agreed to bargain over the ef‐
fects of changes to credit hours in the Photography Department, and not
Nos. 16‐2080 & 16‐2026 5
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 pro‐
posed new language extending the clause to explicitly waive
PFAC’s right to bargain over the effects or impact of Colum‐
bia’s management decisions. On October 29, PFAC expressed
concern about the proposed modification.
On March 30, 2011, Columbia submitted a new, compre‐
hensive CBA proposal to PFAC. The document included the
additional management‐rights‐clause language that Colum‐
bia had proposed in October 2010. In October 2011, after fur‐
ther negotiations, Columbia resubmitted its March 2011 pro‐
posal to PFAC. PFAC responded by saying that Columbia
was engaging in regressive bargaining.
Negotiations broke down and stalled for several weeks.
Then, on December 19, 2011, Columbia sent PFAC another re‐
vised contract, but with even stronger language in the man‐
agement‐rights clause, which was “intended to constitute a
clear and unmistakable waiver of any rights [PFAC] might
otherwise have to bargain over managerial rights and/or the
effects or impact on unit members of [Columbia’s] decisions
with respect to such rights.” (first alteration in original).
Around the same time, PFAC learned of the credit‐hour
reductions that Columbia had made in the spring of 2010.
PFAC sought a list of affected courses from Columbia and de‐
manded to bargain over the effects of the changes.
to violate the National Labor Relations Act “in any similar way” in the
future. However, the parties do not argue that the settlement’s non‐viola‐
tion provision impacts the current dispute.
6 Nos. 16‐2080 & 16‐2026
On February 13, 2012, PFAC called for Columbia to re‐
sume face‐to‐face negotiations from the parties’ bargaining
positions as they had stood in October 2011. PFAC also stated
that it would not consider Columbia’s December 2011 pro‐
posal, which PFAC felt was regressive. On February 21, 2012,
Columbia notified PFAC that the college did not believe it had
an obligation to bargain with PFAC about the effects of
course‐credit‐hour reductions. Nevertheless, Columbia pro‐
vided a list of the impacted courses, and stated that it was
willing meet to discuss the issue if PFAC would first give Co‐
lumbia a proposal regarding the effects, and a list of PFAC
members that had been affected by the changes to course
credit hours. Similar exchanges followed in March and April
2012.
On May 4, 2012, Columbia agreed to meet and discuss the
credit‐hour reductions, and the parties resumed face‐to‐face
negotiations in late June 2012. (PFAC did not allege that Co‐
lumbia had engaged in bad‐faith bargaining after this date.)
On August 28, 2012, the NLRB lodged a complaint against
Columbia. The Board’s consolidated complaint alleged,
among other things, that Columbia had violated Sections
8(a)(1) and (5) of the NLRA, 29 U.S.C. §§ 158(a)(1), (5), by fail‐
ing to bargain: 1) over the effects of the credit‐hour reductions
from February to May 2012; 2) for a successor CBA from Feb‐
ruary to June 2012; and 3) in good faith with PFAC.
On March 15, 2013, after a full hearing, the Administrative
Law Judge (“ALJ”) issued his recommended decision and or‐
der. He concluded that Columbia had failed to engage in ef‐
fects bargaining, had failed to adequately negotiate for a suc‐
cessor CBA, had set illegal preconditions to bargaining, and
Nos. 16‐2080 & 16‐2026 7
had demonstrated bad‐faith bargaining in its overall behav‐
ior. However, the ALJ declined to award special remedies, in‐
cluding reimbursement of PFAC’s bargaining expenses, not‐
ing, “I cannot find … that [Columbia’s] misconduct was so
aggravated as to infect the bargaining process to the point
where traditional remedies would not be effective.” Colum‐
bia, PFAC and the NLRB each filed exceptions to the ALJ’s
decision.
On March 24, 2016, the NLRB, through a divided three‐
member panel, issued its decision and order. The NLRB
agreed that Columbia had failed to engage in effects bargain‐
ing, set unlawful preconditions to bargaining, and negotiated
in bad faith. Noting the absence of objections, the NLRB also
adopted the ALJ’s findings on Columbia’s failure to ade‐
quately bargain over a successor CBA.3
However, the NLRB disagreed with the ALJ regarding
remedies, and awarded bargaining expenses. The NLRB or‐
dered Columbia to compensate PFAC for efforts to initiate ef‐
fects bargaining from February 21, 2012, to May 4, 2012, and
in connection with bargaining for a successor contract from
March 31, 2012, to June 13, 2012.
3 The NLRB likewise adopted the ALJ’s findings regarding several al‐
legations not at issue in this appeal, including Columbia’s failure to pro‐
vide information on its professor‐evaluation system, misconduct toward
a PFAC negotiator and Columbia faculty member, and maintenance of an
overbroad work rule. Columbia does not challenge any of these adopted
findings. The NLRB further adopted the ALJ’s dismissal of several allega‐
tions against Columbia, and the NLRB does not challenge this aspect of
the order. We summarily enforce the unchallenged portions of the NLRB’s
decision and order. E.g., N.L.R.B. v. Alwin Mfg. Co., 78 F.3d 1159, 1162 (7th
Cir. 1996); 29 U.S.C. § 160(e).
8 Nos. 16‐2080 & 16‐2026
As to the governing standard for waivers of bargaining
rights, the NLRB majority stated,
We also reject our dissenting colleague’s argu‐
ment that [Columbia] had no duty to bargain
over the effects of its decision to change course
credit hours under the contract‐coverage test
endorsed by the District of Columbia Circuit
and the Seventh Circuit. The Board has declined
to adopt the contract‐coverage standard and in‐
stead has consistently applied the “clear and
unmistakable” waiver standard. See Provena St.
Joseph Medical Center, 350 NLRB 808 (2007) .…
The dissenting panel member argued that Columbia had
not violated the NLRA because the college had no duty to bar‐
gain over the effects of the credit‐hour reductions. The dissent
outlined three rationales for this conclusion: 1) the effects
were the inevitable consequence of a permissible managerial
decision under Fresno Bee, 339 NLRB 1214 (2003);4 2) under
binding case law from this Court, the effects of the credit‐hour
reductions were already “covered” by the CBA and there was
no indication that the effects should be treated separately
from the decision itself; and 3) Columbia did not violate the
NLRA even under the majority’s version of the unmistakable‐
4 Under Fresno Bee, an employer has no duty to bargain over the effects
of a permissible managerial decision if “the change resulted directly from
that decision, [and] there was no possibility of an alternative change in
terms of employment that would have warranted bargaining.” 339 NLRB
at 1214–15 (citing Holly Farms Corp. v. N.L.R.B., 48 F.3d 1360, 1368 (4th Cir.
1995)).
Nos. 16‐2080 & 16‐2026 9
waiver standard. The dissent concluded that bargaining ex‐
penses were inappropriately awarded. This appeal followed.
II. Discussion
Though “we give substantial deference to both [the
NLRB’s] findings of fact and its interpretations of the
[NLRA],” we must still “determine whether the Board’s deci‐
sion is supported by substantial evidence and whether its le‐
gal conclusions have a reasonable basis in law.” Roundy’s Inc.
v. N.L.R.B., 674 F.3d 638, 645–46 (7th Cir. 2012) (citations omit‐
ted). “We defer to the Board’s interpretation of the [NLRA]
unless its legal conclusions are irrational or inconsistent with
the Act. Where a matter involves analysis of state law for
which the Board has no special expertise, however, our re‐
view is de novo,” including in matters of contractual interpre‐
tation. Id. at 646 (citations and internal quotation marks omit‐
ted). Additionally, courts “refuse[] enforcement of Board or‐
ders where they ha[ve] no reasonable basis in law, either be‐
cause the proper legal standard was not applied or because
the Board applied the correct standard but failed to give the
plain language of the standard its ordinary meaning.” Ford
Motor Co. v. N.L.R.B., 441 U.S. 488, 497 (1979) (citation and in‐
ternal quotation marks omitted).
The NLRB, in finding for PFAC, applied the “clear and un‐
mistakable waiver” standard. However, as the NLRB’s order
recognized, when a binding CBA fully defines the parties’
rights on the contested issue, we look only to the language of
the agreement; the clear‐and‐unmistakable‐waiver standard
is irrelevant. See Chicago Tribune Co. v. N.L.R.B., 974 F.2d 933,
937 (7th Cir. 1992). Because the NLRB chose to apply a stand‐
10 Nos. 16‐2080 & 16‐2026
ard that conflicts with this Court’s precedents, we owe no def‐
erence to the NLRB’s legal conclusions. See Ford Motor Co., 441
U.S. at 497; Roundy’s Inc., 674 F.3d at 645–46.
A. Contractual Waiver of Effects Bargaining
The NLRA allows employees to bargain collectively
through a chosen bargaining representative. 29 U.S.C. § 157.
An employer must bargain with the representative over sig‐
nificant changes in working conditions. See id. § 158(a)(5);
Contemporary Cars, Inc. v. N.L.R.B., 814 F.3d 859, 868 (7th Cir.
2016); Local 15, Int’l Bhd. of Elec. Workers, AFL‐CIO v. Exelon
Corp., 495 F.3d 779, 783 (7th Cir. 2007). Statutory rights such
as these may be waived by the bargaining representative, of‐
ten “to secure gains it considers of more value to its mem‐
bers.” Metro. Edison Co. v. N.L.R.B., 460 U.S. 693, 707 (1983),
Waivers of statutory rights must be “clear and unmistakable.”
Id. at 708.
Since Metropolitan Edison, this Court has determined that
where the contract fully defines the parties’
rights as to what would otherwise be a manda‐
tory subject of bargaining, it is incorrect to say
that the union has “waived” its statutory right
to bargain; rather, the contract will control and
the “clear and unmistakable” intent standard is
irrelevant.
Chicago Tribune, 974 F.2d at 937 (quoting Local Union No. 47 v.
N.L.R.B., 927 F.2d 635, 641 (D.C. Cir. 1991)). The parties refer
to this agreement‐centric approach as “contract‐coverage
analysis.”
Nos. 16‐2080 & 16‐2026 11
This type of analysis applies to decisions taken by employ‐
ers and to the effects of those decisions, unless the parties’ col‐
lective‐bargaining agreement contemplates treating effects
separately from the decisions covered by the terms of the
agreement. Enloe Med. Ctr. v. N.L.R.B., 433 F.3d 834, 838–39
(D.C. Cir. 2005) (“Whether the parties contemplated that the
collective bargaining agreement would treat the effects of a
decision separately from the decision itself is just as much a
matter of ordinary contract interpretation as is the initial de‐
termination of whether the agreement covers the matter alto‐
gether. It would be rather unusual, moreover, to interpret a
contract as granting an employer the unilateral right to make
a particular decision but as reserving a union’s right to bar‐
gain over the effects of that decision. This is not to say that
such an interpretation is inconceivable, but it would seem that
there would have to be some language or bargaining history
to support the proposition that the parties intended to treat
the issues separately.”).
Thus, under Chicago Tribune, the NLRB or reviewing court
should first look to see whether the parties are subject to an
agreement, such as a collective‐bargaining agreement, that
sets out their respective rights and responsibilities. If there is
such an agreement, the adjudicating body should determine,
using normal principles of contract interpretation, whether
the agreement “fully defines the parties’ rights as to what
would otherwise be a mandatory subject of bargaining.” 974
F.2d at 937. If it does, the court should apply the terms of the
agreement to the facts of the case in deciding whether the em‐
ployer has fulfilled its contractual obligations. Finally, if the
bargaining representative argues that the employer was obli‐
gated to bargain over the effects of the employer’s decision,
the court should look to see whether the governing agreement
12 Nos. 16‐2080 & 16‐2026
or the parties’ bargaining history indicates an intent to treat
effects bargaining separately from bargaining over the deci‐
sion itself. See Enloe Med. Ctr., 433 F.3d at 838–39.
In the absence of a CBA, credit‐hour changes would likely
be a mandatory subject of bargaining between the parties.
However, in this case, PFAC and Columbia agreed to con‐
tinue the terms of their 2006 CBA while negotiating a succes‐
sor agreement. The 2006 agreement gave Columbia “sole dis‐
cretion” to, among other things, “modify … all aspects of ed‐
ucational policies and practices,” including the “modification
[or] alteration … of any … course.” Reducing the number of
credit hours for a course constitutes a modification or altera‐
tion of that course. The management‐rights clause thus fully
defined the parties’ rights with respect to course‐credit‐hour
changes.5
Further, the agreement did not create a decisions‐effects
bargaining dichotomy. PFAC did not adduce bargaining‐his‐
tory evidence or point to contractual language showing that
the parties intended to treat effects bargaining separately
from Columbia’s decision‐making rights. To the contrary, Co‐
lumbia had made many credit‐hour changes in prior years,
and PFAC had not demanded effects bargaining until the
2010 Photography Department lawsuit. 6 When PFAC first de‐
manded to engage in effects bargaining over the credit‐hour
5 Columbia complied with its related contractual obligation to notify
affected faculty members of impending significant changes to courses.
6
The NLRB argues that the Photography Department settlement
agreement’s effects‐bargaining provision indicates that PFAC did not
waive its effects‐bargaining rights. Columbia argues that years of unchal‐
lenged curriculum changes shows the opposite. While true that “[t]he fail‐
ure to demand bargaining in the past, without more, does not waive that
Nos. 16‐2080 & 16‐2026 13
reductions in this case, Columbia’s initial rejoinder stated that
Columbia did not have such a bargaining obligation.7 Regard‐
ing the CBA’s terms, the parties agreed both to tie part‐time‐
faculty compensation to credit hours and to allow Columbia
to unilaterally modify those hours, without engaging in sep‐
arate effects bargaining for changes in faculty pay.
In sum, Columbia and PFAC bargained over their respec‐
tive rights and duties, and agreed to a binding CBA. The
terms of that contract gave Columbia the right to alter course
credits—the subject area over which PFAC wanted to engage
bargaining right forever,” N.L.R.B. v. Roll & Hold Warehouse & Distrib.
Corp., 162 F.3d 513, 518 (7th Cir. 1998), such a failure is a good indication
that the parties did not intend to separate decision bargaining from effects
bargaining under Enloe. Further, the NLRB does not develop an argument
as to why the Photography Department settlement agreement shows an
intention to separate effects from decisions; the settlement’s effects‐bar‐
gaining provision could also be understood as a concession to PFAC to
settle the dispute, and not as a wider indication of what the 2006 CBA
meant. In fact, the notice to employees generated by the settlement is ex‐
pressly limited to the effects of credit‐hour changes “in the Photography
Department.” This settlement is not sufficient to demonstrate that the par‐
ties intended to treat the two types of bargaining separately.
7 Additionally, Columbia twice attempted to insert explicit effects‐
bargaining waivers into the proposed management‐rights clause during
the 2010–2011 negotiations. PFAC argues that the correct interpretation of
this bargaining posture reveals that Columbia never believed that it actu‐
ally had obtained an effects‐bargaining waiver from PFAC. However, the
rejected modifications can also be understood as attempts by Columbia to
clarify its pre‐existing rights using exceedingly clear waiver language. In
the context of the 2010 Photography Department lawsuit and the negotia‐
tions underlying this lawsuit, such a goal would have been understanda‐
ble. This Court therefore declines to interpret these contract‐modification
attempts as definitive evidence of the parties’ intent to treat effects bar‐
gaining and decision bargaining separately.
14 Nos. 16‐2080 & 16‐2026
in effects bargaining. Further, the CBA did not indicate sepa‐
rate treatment of effects bargaining and decision bargaining.
Therefore, Columbia was not under any further obligation to
bargain with PFAC over the effects of the credit‐hour reduc‐
tions. The college had already satisfied its statutory bargain‐
ing duty on this issue when it negotiated and entered into the
2006 CBA.8
B. Bargaining Expenses
Columbia does not contest on appeal that it failed to ade‐
quately negotiate for a successor CBA in 2012. For “the vast
majority of bad‐faith bargaining violations,” the traditional
remedies of a bargaining order, “cease‐and‐desist order[,] and
the posting of a notice[] will suffice to induce a respondent to
fulfill its statutory obligations.” Frontier Hotel & Casino, 318
NLRB 857, 859 (1995). However,
[i]n cases of unusually aggravated misconduct,
… where … substantial unfair labor practices
have infected the core of a bargaining process to
such an extent that their “effects cannot be elim‐
inated by the application of traditional reme‐
dies,” an order requiring the respondent to re‐
imburse the charging party for negotiation ex‐
penses is warranted … .
Id. (quoting N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 614
(1969)).
8 Because we decide that Columbia had no further duty to bargain
under Chicago Tribune, we do not address whether the effects of the credit‐
hour reductions were inevitable consequences of a permissible managerial
decision under Fresno Bee, 339 NLRB 1214, or whether Columbia would
have succeeded under the NLRB’s version of waiver analysis.
Nos. 16‐2080 & 16‐2026 15
The NLRB awarded bargaining expenses to PFAC under
this standard, partially relying on conduct that Columbia
does not challenge on appeal, but also on Columbia’s behav‐
ior during the effects‐bargaining negotiations. Because we
conclude that Columbia was not obligated to engage in such
bargaining, we vacate the award of bargaining expenses and
remand to the NLRB to decide whether such a remedy is still
warranted in this case without considering the effects‐bar‐
gaining behavior.
III. Conclusion
For the foregoing reasons, we GRANT Columbia’s petition
for review, and GRANT in part and DENY in part the NLRB’s
application for enforcement of the Board’s order. We VACATE
the order’s effects‐bargaining and negotiation‐expense com‐
ponents, summarily enforce the remainder, and REMAND for
further proceedings consistent with this opinion.
16 Nos. 16‐2080 & 16‐2026
HAMILTON, Circuit Judge, concurring. Judge Flaum’s opin‐
ion for the court applies correctly this circuit’s precedents on
“effects bargaining.” See, e.g., Chicago Tribune Co. v. NLRB, 974
F.2d 933 (7th Cir. 1992). The Board quite deliberately chose not
to follow this circuit’s precedents in this case, perhaps to set
up a test case to resolve the circuit split on the “clear and un‐
mistakable” standard for waiver on effects bargaining. See
generally Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 709
(1983) (rejecting finding of waiver of union officials’ rights un‐
der no‐strike clause: “to waive a statutory right the duty must
be established clearly and unmistakably”).
There are strong arguments in favor of the Board’s “clear
and unmistakable” standard for waiver of bargaining rights
on effects that management decisions have on employees. See,
e.g., Provena St. Joseph Medical Center, 350 NLRB 808 (2007).
Our different approach is settled law in this circuit, however.
If this legal standard is to change, it will need to happen in a
different forum.
On the remedial issue, even without the effects‐bargaining
issue, the Board’s decision to impose a remedial award of ne‐
gotiating costs had ample support. Columbia College has not
even challenged the Board’s findings that it violated the Na‐
tional Labor Relations Act by engaging in bad‐faith bargain‐
ing, by failing to meet and bargain over a successor agreement
for four months, by failing to provide the union with re‐
quested information, by harassing a union official and then
threatening her with discipline when she complained about
it, by discriminating against the same union official, by main‐
taining an overly broad policy on use of the college’s com‐
puter network, and by setting an unlawful precondition to
bargaining. Because the effects‐bargaining issue was part of
Nos. 16‐2080 & 16‐2026 17
the Board’s calculus in using its remedial discretion, I agree
we must remand the remedial issue to the Board. There was
plenty of other egregious conduct by the employer here, how‐
ever, and Judge Flaum’s opinion leaves the Board ample dis‐
cretion to impose that remedy again on remand.