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Negotiations Required

NLRB rules that college paying adjuncts based on credit hours was required to negotiate with union before cutting the credit hours (and effectively cutting adjunct pay) of some courses.

March 28, 2016
 

Many faculty union contracts include clauses that say the administration retains the right to make necessary financial and academic decisions. Likewise, many of these contracts include clauses that require any changes in faculty wages and working conditions proposed by the administration to be negotiated through collective bargaining, not imposed by fiat. Sometimes these principles may appear to clash.

In a case that has been controversial for several years, the National Labor Relations Board ruled last week, 2 to 1, that Columbia College Chicago violated federal labor law when it, in 2010 and 2011, unilaterally reduced the number of credit hours associated with 10 courses. The move was challenged by the Part-Time Faculty Union at the college, which is known as P-FAC. The college also refused to talk to the union about the issue until the union detailed exactly how it wanted to resolve the issue and for months refused to engage in any negotiations at all -- also moves the NLRB found violated federal labor law.

The NLRB found the college's actions were so egregious that it ordered Columbia College Chicago to pay the union's negotiating expenses.

The credit hour issue is directly related to wages, the NLRB found. P-FAC's contract with the college stipulates that adjuncts are paid various wages for each three-credit course they teach and that courses for more or fewer than three credits are accompanied by prorated wages. So all those who taught the formerly three-credit courses received pay cuts.

The college -- and one NLRB member who dissented on the ruling -- cited a provision in the contract that says the college has the right "to plan, establish, terminate, modify and implement all aspects of educational policies and practices, including curricula; admission and graduation requirements and standards; scheduling; academic calendar; student discipline; and the establishment, expansion, subcontracting, reduction, modification, alteration, combination or transfer of any job, department, program, course, institute or other academic or nonacademic activity and the staffing of the activity, except as may be modified by this agreement." They said this provision was sweeping enough to give the college the power to change the credit hours in question.

The NLRB, however, ruled that changing the credit hours associated with courses was a direct change to wages and couldn't be viewed as simply managerial discretion of the type covered by that clause.

"There was nothing … that precluded the [college] from exploring different levels of compensation with respect to any individual course, including the courses affected by the [college's] decision to reduce credit hours," the decision said. But the college was required to negotiate, it said. "There may have been other bargainable effects and alternatives as well, perhaps even ones that the parties themselves did not perceive immediately." The path selected by the college was not "inevitable," as a result of necessary managerial decisions, the NLRB found. The college simply tried to make it inevitable, and that's not its right, the board ruled.

The NLRB ordered the college to take a number of steps, including resuming negotiations on the issue, "making whole" any faculty members who lost money as a result of the changes and paying the union's negotiating expenses.

The college released this statement Sunday night: "Under a new administration in 2013, Columbia College Chicago and the part-time faculty union (P-FAC) negotiated a new collective bargaining agreement. The events in the NLRB decision occurred in 2011-12, and the college is exploring all of its options in the coming days, including an appeal to the federal courts. The college disagrees with the majority's decision and acknowledges the well-reasoned and detailed dissenting opinion. However, the college continues to work with P-FAC to resolve any ongoing matters, and strives for positive outcomes for the campus community as a whole."

William A. Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions, located at Hunter College of the City University of New York, said the NLRB decision is significant in that it "highlights the legal principle that a college can be obligated to negotiate, upon demand, the impact of a decision even when that decision falls under the ambit of managerial discretion."

Further, he said the penalty imposed by the NLRB is likely to make others take note. "Requiring the reimbursement of negotiating costs is not a traditional remedy in unfair labor practice cases," he said.

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