Part-time Faculty Association v. Columbia College Chicago

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-3492

PART-TIME FACULTY ASSOCIATION AT COLUMBIA COLLEGE

CHICAGO,

Plaintiff-Appellant,

v.

COLUMBIA COLLEGE CHICAGO,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:17-cv-513 — John J. Tharp, Jr., Judge.

____________________

ARGUED MAY 31, 2018 — DECIDED JUNE 15, 2018

____________________

Before FLAUM, MANION, and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge. This case involves a labor dispute be-

tween Columbia College Chicago (“CCC” or “the College”)

and one of its employee unions, the Part-Time Faculty Asso-

ciation at Columbia College Chicago (“PFAC”), over the rep-

resentation of full-time staff members who also teach part-

time. A Regional Director (“the Director”) of the National La-

bor Relations Board (“NLRB” or “the Board”) ruled that such

2 No. 17-3492

employees were included in PFAC’s bargaining unit for the

purposes of their part-time faculty duties. An independent ar-

bitrator disagreed. After PFAC filed a federal suit to confirm

the arbitration, the district court gave precedence to the Di-

rector’s decision and vacated the award. We affirm.

I. Background

A. Factual Background

CCC operates a private university in Chicago that focuses

on the arts and media. It employs approximately 220 full-time

faculty, 1,000 part-time faculty, and 700 staff (350 full-time

and 350 part-time). PFAC represents part-time faculty for the

purposes of collective bargaining. A separate union, the

United Staff of Columbia College (“USCC”), represents both

full- and part-time staff members. 1 This case involves a dis-

pute over the collective bargaining representation of a unique

hybrid category of approximately 50 to 75 employees who

work as both full-time staff and part-time faculty, referred to

as “Full Time Staff Who Teach” (“FTST”).

The record is divided as to whether, prior to 2015, it was

informally understood that PFAC represented FTST in their

capacity as part-time faculty. On one hand, at the time of

PFAC’s original certification in 1998, it sent a written invita-

tion to all part-time faculty, including FTST, to become union

members. Following PFAC’s certification, CCC also applied

the union’s wage scale and other contractual benefits (such as

tuition remission and sick and personal leave) to both exclu-

sive part-time faculty and FTST. Additionally, PFAC’s former

1 PFAC and USCC used to share the same parent union, the Illinois

Education Association (“IEA”). However, in 2015 PFAC transferred its af-

filiation from IEA to the Service Employees International Union (“SEIU”).

No. 17-3492 3

president and lead negotiator for its first three collective bar-

gaining agreements considered FTST as part of the bargaining

unit. At the same time, the President of CCC wrote to a group

of FTST in 2014 that “[t]he College has never recognized nor

does it agree to voluntarily recognize [FTST] either as mem-

bers of the PFAC bargaining unit or as an independent un-

ion.” Moreover, CCC never placed any FTST on the “unit eli-

gibility list” that it provided to PFAC each semester, and it

did not accord FTST any seniority within the PFAC bargain-

ing unit. Finally, FTST did not pay PFAC union dues.

The recognition clause in PFAC’s collective bargaining

agreement (“CBA”) is equally equivocal. That clause states:

The Unit includes all part-time faculty members

who have completed teaching at least (1) semester at

Columbia College Chicago, excluding all other em-

ployees, full-time faculty, artists-in-residence,

and Columbia College Chicago graduate stu-

dents, part-time faculty members teaching only

continuing education, music lessons to individ-

ual students or book and paper making classes,

Columbia College Chicago full-time staff members,

teachers employed by Erickson Institute, the

YMCA or Alder [sic] Planetarium, and other in-

dividuals not appearing on the Columbia Col-

lege Chicago payroll, managers and confiden-

tial employees, guards, and supervisors as de-

fined in the [National Labor Relations Act].

(emphasis added). FTST are part-time faculty members who

have generally taught at least one semester at the College, and

thus arguably fall under the scope of the general inclusion

4 No. 17-3492

provision. However, FTST also qualify as full-time staff mem-

bers, which are expressly excluded from representation.

In February 2015, USCC petitioned the NLRB under § 9 of

the National Labor Relations Act (“NLRA”) to add FTST to its

existing bargaining unit via a self-determination election. See

29 U.S.C. § 159. The petition was originally dismissed on the

ground that FTST were already represented by PFAC. How-

ever, that dismissal was later revoked and the petition rein-

stated so that evidence on the issue could be presented. The

Director conducted a twelve-day evidentiary hearing, during

which numerous CCC employees testified about terms and

conditions of employment at the College.

PFAC intervened in the Board proceedings and claimed

that it did not represent FTST. It argued that FTST did not

share a “community of interest” with other part-time faculty

and that their inclusion in the bargaining unit would “desta-

bilize” the existing contract between PFAC and the College. It

also asserted that including FTST “would create a minority

union to compete with an already established majority un-

ion’s representation of part-time faculty.”

In August 2016, the Director issued a “Decision and Or-

der” that found FTST were included in the PFAC bargaining

unit in their capacity as part-time faculty. He ruled that FTST

qualified as “dual function” employees because they held

“two separate and independent jobs, one as full-time staff and

the other as part-time faculty.” He further decided that as

part-time faculty, FTST were “already included in the PFAC

unit … and covered by the PFAC contract.” He supported this

determination by highlighting relevant witness testimony

and pointing to the section of PFAC’s recognition clause that

states, “[t]he Unit includes all part time faculty members who

No. 17-3492 5

have completed teaching at least one (1) semester at Columbia

College Chicago.” Although he acknowledged that the recog-

nition clause also excludes “full-time staff members,” he be-

lieved the limitation applied to FTST “only in regard to their

capacity as full-time staff.” Thus, in his view, FTST were in-

cluded “within the plain language of the PFAC unit descrip-

tion.” Because their faculty job classification “[was] already

included in a unit covered by a contract,” he concluded that

contract bar principles prevented their further inclusion in

USCC. Consequently, USCC’s self-determination petition

was dismissed.

PFAC requested review of the Director’s decision by the

NLRB. See 29 C.F.R. § 102.67(c) (“Upon the filing of a re-

quest … the Board may review any action of a Regional Di-

rector.”). Before the Board issued its final decision, however,

CCC began to unilaterally assign retroactive seniority to FTST

employees under the terms of the PFAC CBA. In response,

PFAC filed a grievance against the College, arguing that

CCC’s actions violated the CBA because “[n]one of the so-

called ‘FTST’ … ha[d] paid the necessary union dues or

agency fees to accrue or maintain seniority in the [PFAC]

unit.” 2 After CCC denied the grievance, PFAC sought arbitra-

tion.

2 Under the PFAC CBA, seniority within the bargaining unit is based

upon credit hours taught. However, the CBA also requires all members to

“satisfy a financial obligation to [PFAC] as the Unit’s exclusive bargaining

representative,” and failure to pay union dues renders a member ineligi-

ble to teach. Based upon these provisions, PFAC argued that, because

FTST had never paid union dues, the College should not have unilaterally

counted their existing credit history toward seniority.

6 No. 17-3492

In its briefs to the arbitrator, PFAC acknowledged that the

Director included FTST in the PFAC bargaining unit, and

claimed that it was “not using [the] arbitration as a collateral

challenge to the [Director’s] ruling.” It further stated that it

would “comply with [the decision] and fairly represent the

FTST” as long as it remained in effect. Nevertheless, it main-

tained that the Director “was silent as to how to implement

that decision,” and “silent as to retroactivity.” In the eyes of

PFAC, the Director “claimed jurisdiction over a representa-

tion dispute, not a contract dispute over comparative, intra-

unit seniority.” It argued that, by extension, “[n]othing in the

[Director’s] Decision mandate[d] that the Employer (or the

Union) give FTST ‘back seniority.’” It advocated that, since

the Board had not yet issued a final decision, it was best “to

allow the administrative process to play out” rather than al-

low “immediate, unilateral action from the Employer.” It

sought for the College “to cease and desist such unilateral as-

signments of seniority and to make whole any [PFAC] unit

member who loses work as a result of the improper assign-

ment of seniority/credit history.” It argued that such a ruling

would “maintain[] the status quo until the administrative

process [before the Board was] ‘final.’”

The arbitrator issued an award to PFAC on January 11,

2017. His decision, however, went beyond matters of mere

seniority and addressed the underlying question of represen-

tation. He framed the “core issue presented” as one of “con-

tract law,” specifically, the proper interpretation of the recog-

nition clause in PFAC’s CBA. He emphasized that his “role

and authority” was to “determine the parties’ mutual intent

lying behind the governing contract language.” He concluded

that the recognition clause was ambiguous as to the inclusion

of FTST. He further determined that, prior to the Director’s

No. 17-3492 7

decision, the parties’ “custom and practice” excluded FTST

from the PFAC bargaining unit. As a result, he characterized

FTST as “non-members of the bargaining unit.” In his view,

“because the parties did not mutually intend to include the

FTST employees in the bargaining unit … [CCC] violated [the

CBA] when it treated those employees as if they were in the

unit.”

On February 14, 2017, the NLRB denied PFAC’s request

for review, thereby affirming the Director’s dismissal of

USCC’s petition. See 29 C.F.R. § 102.67(g) (“Denial of a request

for review shall constitute an affirmance of the regional direc-

tor’s action.”).

B. Procedural Background

On January 23, 2017, PFAC filed suit under the Federal Ar-

bitration Act (“FAA”) to confirm the arbitration award and

compel CCC to abide by its terms. 3 See 9 U.S.C. § 9. CCC re-

sponded by filing a cross-motion to vacate the arbitrator’s de-

cision, arguing that it directly conflicted with the Director’s

3 As the district court highlighted, the arbitration of disputes implicat-

ing collective bargaining agreements is also provided for under the Labor

Management Relations Act (“LMRA”), see 29 U.S.C. § 173, and “as a tech-

nical matter, ‘[i]n seeking to confirm an arbitration award created by vir-

tue of a collective bargaining agreement, recourse is to the LMRA, not the

FAA.’” Part-Time Faculty Ass’n at Columbia Coll. Chi. v. Columbia Coll. Chi.,

No. 17-cv-513, 2017 WL 5192023, at *3 n.4 (N.D. Ill. Nov. 9, 2017) (quoting

Cleveland v. Porca Co., 38 F.3d 289, 296 n.5 (7th Cir. 1994)). Regardless, with

limited exceptions not relevant here, “arbitration under the LMRA and the

FAA are generally subject to the same governing principles.” Id. (citing

Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 298 n.6 (2010); AT&T

Techs., Inc. v. Comm’ns Workers of Am., 475 U.S. 643, 650 (1986); Int’l Union

of Operating Eng’rs v. Murphy Co., 82 F.3d 185, 188–89 (7th Cir. 1996)).

8 No. 17-3492

ruling and thus infringed upon the NLRB’s primary jurisdic-

tion over representation issues. CCC further claimed that the

arbitrator exceeded his authority because the question of

FTST representation was not fairly subsumed within the

grievance submitted by PFAC.

The district court ruled in CCC’s favor on November 7,

2017. It agreed that the arbitration award contravened the Di-

rector’s ruling and found that, “where the Board decides a

representational issue, that decision necessarily takes prece-

dence over an arbitration award on the same issue.” Accord-

ing to the court, because the arbitrator “decided that issue in-

consistently with the NLRB’s resolution of that question, it

cannot stand.”

The court further found that the arbitrator exceeded his

contractual authority. It believed that PFAC’s grievance was

“cast in terms focusing on the required method for making

seniority determinations, not on determinations about who is

eligible for representation by the bargaining unit.” As a result,

“the issue in the arbitration was not whether FTST were

within the PFAC unit, but rather whether the manner in

which CCC was assigning work … was consonant with the

terms of the CBA.” Thus, it concluded that the arbitrator acted

improperly by reaching the representation issue.

Finally, the court ruled that the arbitration award contra-

vened the public policy goal of vesting primary jurisdiction

over representation issues to the NLRB. In addition, it felt that

enforcement of the award would “force CCC, like Odysseus,

between Scylla and Charybdis by requiring it to comply with

two irreconcilable orders, one requiring the college to recog-

nize FTST as members of the PFAC bargaining unit and the

other forbidding it from doing so.” This appeal followed.

No. 17-3492 9

II. Discussion

In reviewing a district court’s affirmation or vacation of an

arbitrator’s award, “[w]e accept … findings of fact that are not

clearly erroneous and review questions of law de novo.” Pros-

tyakov v. Masco Corp., 513 F.3d 716, 723 (7th Cir. 2008). Here,

the district court found the arbitrator’s award unenforceable

because: (1) it conflicted with a representational decision of

the NLRB; (2) the arbitrator exceeded his authority under the

CBA; and (3) it violated public policy. We need not address

all three issues here. “[W]e may affirm on any basis that ap-

pears in the record,” see Kidwell v. Eisenhauer, 679 F.3d 957, 965

n.1 (7th Cir. 2012), and the Board’s primary jurisdiction offers

a sufficient avenue for affirming the district court’s ruling.

The Director’s representation decision trumps the arbitra-

tion award. A series of controlling case law, beginning with

the Supreme Court’s decision in Carey v. Westinghouse Electric

Corp., 375 U.S. 261 (1964), is instructive. In Carey, the Interna-

tional Union of Electrical, Radio, and Machine Workers

(“IUE”) and the employer entered into a collective bargaining

agreement covering “production and maintenance employ-

ees” at several plants. Id. at 262. At the same time, the em-

ployer entered into a separate collective bargaining agree-

ment with another union, Federation, covering “salaried,

technical” employees. Id. IUE filed a grievance against the em-

ployer on the grounds that certain employees represented by

Federation were performing production and maintenance

work that should have been allocated to IUE workers. Id. The

employer refused to arbitrate the grievance, claiming that the

controversy presented a matter of union representation solely

for the NLRB. Id. at 262–63. In response, IUE sought to compel

arbitration in state court. Id. at 263.

10 No. 17-3492

On appeal, the Court noted that the NLRA “not only tol-

erates but actively encourages voluntary settlements of work

assignment controversies between unions.” Id. at 266 (citing

29 U.S.C. § 160(k)). Because “arbitration is one method” of set-

tling such disputes, it believed that “grievance procedures

pursued to arbitration further the policies of the Act.” Id. at

265–66. It recognized that some labor disagreements involve

not only “work assignment dispute[s],” but also questions of

representation, and that in those situations, the NLRA allows

the union or employer to petition the Board for relief. Id. at

266–67. However, it maintained that “the existence of a rem-

edy before the Board … does not bar individual employees

from seeking damages for breach of a collective bargaining

agreement in a state court.” Id. at 268. In other words, “[h]ow-

ever the dispute be considered—whether one involving work

assignment or one concerning representation—[the Court

saw] no barrier to use of the arbitration procedure.” Id. at 272.

Critically, however, the Court provided the following admon-

ition regarding the “superior authority of the Board”: “Should

the Board disagree with the arbiter, by ruling, for example, that the

employees involved in the controversy are members of one bargain-

ing unit or another, the Board’s ruling would, of course, take prece-

dence.” Id. (emphasis added).

This Circuit applied Carey’s disclaimer to an analogous

fact pattern in Smith Steel Workers v. A. O. Smith Corp., 420 F.2d

1 (7th Cir. 1969). There, the Smith Steel Workers Union (the

“Union”) represented production, maintenance, and office

employees at the employer’s Milwaukee plant. Id. at 5. An-

other union, the predecessor of the Technical Engineers Asso-

ciation (“TEA”), represented laboratory technicians and assis-

tants. Id. Eventually, the unions and employer each filed unit

clarification petitions with the NLRB over the classification of

No. 17-3492 11

certain employees in the company’s automotive laboratory.

Id. at 5–6. The Board ruled that the employees were included

in the TEA unit. Id. at 6. Despite the Board’s decision, the Un-

ion notified the company that it expected the company to rec-

ognize the Union, not TEA, as the exclusive bargaining repre-

sentative of the employees in question. Id. When the company

refused, the Union filed suit in federal court to compel arbi-

tration. Id. On appeal, we affirmed the district court’s refusal

“to compel arbitration of the unit representation issue after its

determination by the Board.” Id. at 7. Citing Carey, we stated

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.” Id.

We held that “[t]he Board’s … determination of the appropri-

ate units fully disposed of the question” and “defined the law-

ful limits of coverage of the contract which the Union sought

to have enforced.” Id. As a result, “the Board’s order deprived

the Union of any right to recognition as the representative” of

the employees at issue. Id. By extension, “[t]he court could

compel neither arbitration nor enforce any arbiter’s award in

conflict with the Board’s order.” Id.

We reached a similar result in Yellow Freight Systems, Inc.

v. Automobile Mechanics Local 701 International Association of

Machinists, 684 F.2d 526 (7th Cir. 1982). In Yellow Freight, the

employer operated four interstate trucking terminals whose

employees were represented by the International Association

of Machinists (“IAM”), as well as three “break-bulk” termi-

nals whose employees were represented by the International

Brotherhood of Teamsters. Id. at 527. When the employer later

transferred all of its break-bulk operations (and employees) to

a new terminal in Bedford Park, Illinois, IAM filed a petition

12 No. 17-3492

with the NLRB seeking a representation election at the facil-

ity. Id. at 527–28. The Board agreed and directed that an elec-

tion be held. Id. at 528. Following the Board’s order, but prior

to the election date, IAM informed the company that it in-

tended to proceed to arbitration over whether Yellow Freight

violated the parties’ collective bargaining agreement when

the company refused to apply the agreement to the Bedford

Park terminal. Id. at 529. The company sought to enjoin the

grievance proceeding, arguing that the NLRB’s election deci-

sion “superseded any possible decision by an arbitrator con-

cerning IAM’s grievance.” Id. We agreed:

[S]ince 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 deci-

sion by an arbitrator on the same issue, we de-

cline to compel arbitration of a grievance the

substance of which has previously been decided

by the NLRB.

Id. at 530.

Here, the district court properly followed Carey, Smith

Steel, and Yellow Freight. The Director’s August 2016 decision

concluded that FTST were “included in the PFAC unit … and

covered by the PFAC contract.” The arbitrator’s January 11,

2017 award opines on the same issue by characterizing FTST

as “non-members of the bargaining unit.” Given the primacy

of the NLRB’s determination, the countervailing arbitration

decision cannot stand.

PFAC seeks to avoid Carey and its progeny by arguing that

the Director’s decision was based upon an interpretation of

No. 17-3492 13

the CBA rather than a pure application of labor law. PFAC

believes that, “in the realm of contract interpretation, arbitra-

tors reign supreme” and therefore the Director’s determina-

tion “is due no deference.” In this particular context, PFAC is

incorrect. For one, PFAC misconstrues the scope of the Direc-

tor’s reasoning. True, a limited portion of the Director’s Deci-

sion and Order reconciles the conflicting language in the

CBA’s recognition clause. However, this analysis constitutes

only two paragraphs in the Director’s fourteen page, single-

spaced opinion. The remaining sections discuss other, non-

contract evidence at length, including the parties’ past prac-

tices and terms and conditions of FTST employment.

Regardless, the holdings of Smith Steel and Yellow Freight

make no mention of an exception to the general primacy rule

in cases where a representational decision partially involves

matters of contract. To the contrary, those cases speak in strik-

ingly broad terms. See Smith Steel, 420 F.2d at 7 (“Arbitration

provides an alternative means of resolving disputes over the

appropriate representational unit, but it does not control the

Board in subsequent proceedings.”); Yellow Freight, 684 F.2d

at 530 (“[A]ny ruling by the NLRB takes precedence over any

potential decision by an arbitrator on the same issue.” (em-

phasis added)). PFAC’s argument accordingly fails.

At bottom, irrespective of the Director’s rationale, his de-

cision ultimately addressed USCC’s representative petition

under § 9 of the NLRA. That section “confers broad discretion

on the Board to determine appropriate bargaining units,” be-

cause “the bargaining unit determination is a representational

question reserved in the first instance to the Board.” Carpen-

ters’ Local Union No. 1478 v. Stevens, 743 F.2d 1271, 1278 (9th

Cir. 1984); see also Int’l Union of Operating Eng’rs v. Associated

14 No. 17-3492

Gen. Contractors of Ill., 845 F.2d 704, 709 (7th Cir. 1988) (“Ques-

tions of representation, under section nine of the National La-

bor Relations Act … are matters for the National Labor Rela-

tions Board.”); NLRB v. Am. Printers & Lithographers, 820 F.2d

878, 881 (7th Cir. 1987) (“The Board carries the ultimate re-

sponsibility under the National Labor Relations Act for deter-

mining the appropriate bargaining unit.”). Conferring pri-

macy to the Board’s representational decision is therefore in

keeping with recognized principles of deference. 4

The cases cited in PFAC’s appellate brief do not alter this

conclusion. They only address the relationship between arbi-

trators and the courts, not arbitrators and the NLRB. See, e.g.,

Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509

(2001) (“Judicial review of a labor-arbitration decision pursuant

to such an agreement is very limited. Courts are not author-

ized to review the arbitrator’s decision on the merits despite

allegations that the decision rests on factual errors or misin-

terprets the parties’ agreement.” (emphasis added)); see also

United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied In-

dus. & Serv. Workers Int’l Union v. TriMas Corp., 531 F.3d 531,

535–36 (7th Cir. 2008) (“We must remain mindful, however,

of the limited role we play at this stage. … If the parties have

4 Both the Supreme Court and this Circuit have held that in other con-

texts, the Board’s interpretation of a collective bargaining agreement is en-

titled to no special deference. See, e.g., Litton Fin. Printing Div. v. NLRB, 501

U.S. 190, 201–03 (1991); NLRB v. Int’l Bhd. of Elec. Workers, Local Union 16,

425 F.3d 1035, 1039 (7th Cir. 2005); NLRB v. Cook Cty. Sch. Bus, Inc., 283

F.3d 888, 892 (7th Cir. 2002); Chi. Tribune Co. v. NLRB, 974 F.2d 933, 937

(7th Cir. 1992). Those cases, however, deal with the interpretation of a col-

lective bargaining agreement in the adjudication of unfair labor practices,

not bargaining unit representation.

No. 17-3492 15

in fact agreed to arbitrate their dispute, then they have bar-

gained for the arbitrator’s interpretation of their contract-not

ours.” (first and third emphases added)). Indeed, neither case

references the Board at all. However, “‘the relationship of the

Board to the arbitration process is of a quite different order’

from ‘the relationship of courts to arbitrators when an arbitra-

tion award is under review.’” NLRB v. Horn & Hardart Co., 439

F.2d 674, 678 (2d Cir. 1971) (quoting NLRB v. Acme Indus. Co.,

385 U.S. 432, 436 (1967)). Consequently, PFAC fails to ade-

quately address the central holdings of this Court or similar

pronouncements from other circuits. See, e.g., Chauffeurs,

Teamsters & Helpers Local 776 v. NLRB, 973 F.2d 230, 233–34

(3d Cir. 1992) (“The Board has primary jurisdiction over rep-

resentational issues. … ‘[I]f an NLRB determination on the

definition of the proper bargaining unit conflicts with an ar-

bitration award, the NLRB decision will prevail.’” (quoting

Eichleay Corp. v. Int’l Ass’n of Iron Workers, 944 F.2d 1047, 1056

(3d Cir. 1991))); Cannery Warehousemen, Food Processors, Driv-

ers & Helpers for Teamsters Local Union No. 748 v. Haig Berberian,

Inc., 623 F.2d 77, 82 (9th Cir. 1980) (“[V]alid Board representa-

tion decisions take precedence over conflicting arbitration de-

cisions.”); Gen. Warehousemen & Helpers Local 767 v. Standard

Brands, Inc., 579 F.2d 1282, 1292 (5th Cir. 1978) (“[I]f the NLRB

were to rule contrary to the arbitrator, the Board’s ruling

would take precedence.”).

In short, the arbitration award in this case directly conflicts

with a representation decision of the Board. Therefore, it is

unenforceable as a matter of law.

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the

district court.