BERKLEE COLLEGE OF MUSIC

National Labor Relations Board - Administrative Judge Opinions

Sep 20, 2013

01-CA-089878 (N.L.R.B. Sep. 20, 2013)

JD–64–13
Boston, MA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BERKLEE COLLEGE OF MUSIC
and Case 01–CA–089878
BERKLEE FACULTY UNION, AMERICAN
FEDERATION OF TEACHERS,
LOCAL 4412, AFT-MA, AFL–CIO
Emily Goldman, Esq.,
for the Acting General Counsel.
James W. Bucking, Esq. (Foley Hoag LLP),
for the Respondent.
Haidee Morris, Esq. (AFTMA),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
SUSAN A. FLYNN, Administrative Law Judge. This case was tried in Boston,
Massachusetts, on April 17 and 18, and May 3, 2013. The Union filed the charge on September
24, 2012, and the Acting General Counsel issued the complaint on December 31, 2012.
The complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act by
failing and refusing to bargain collectively and in good faith with the Union when it unilaterally
made a policy change. The Respondent filed an answer denying the essential allegations of the
complaint and raising several defenses.1

1 The Respondent argued that this case should be deferred and referred to arbitration, as art. XI of the
collective-bargaining agreement (CBA) currently in effect provides for a grievance/arbitration procedure.
(Jt. Exh. 2.) When a party’s action presents questions about both the interpretation of a CBA and legal
obligations under the Act, the Board will frequently defer to the arbitration procedures contained in the
parties’ CBA. Collyer Insulated Wire, 192 NLRB 837 (1971), and United Technologies Corp., 268
NLRB 557 (1984). However, there is no alleged breach or misapplication of the contract; nor is there a
dispute as to the interpretation of any portion of the contract, as the terms of the CBA are clear. It is silent
as to the matters at issue. Only statutory obligations under the Act are in dispute. Therefore, it is not
appropriate to refer this dispute to arbitration.
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2
After the trial, the Acting General Counsel and the Respondent filed briefs, which I have
read and considered. Based on the entire record in this case, I make the following
FINDINGS OF FACT
`5
I. JURISDICTION
Respondent is a private nonprofit coeducational institution of higher learning
incorporated under the General Laws of the Commonwealth of Massachusetts with its primary
place of business in Boston, Massachusetts. During the calendar year ending December 31, 10
2012, which is representative of its annual operations, Respondent received gross revenues from
all sources (excluding contributions which are, because of limitation by the grantor, not available
for use for operating expenses) in excess of $1,000,000. In conducting its operations during the
calendar year ending December 31, 2012, Respondent purchased and received at its Boston
campus goods valued in excess of $50,000 directly from points outside the Commonwealth of 15
Massachusetts. Accordingly, I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
I also find that the Union is a labor organization within the meaning of Section 2(5) of the
Act.20
II. ALLEGED UNFAIR LABOR PRACTICES
The Facts
25
Background
Respondent, Berklee College of Music, located in Boston, Massachusetts,2 was founded
in 1945 as a private nonprofit coeducational undergraduate institution of higher learning,
focusing on contemporary music. (Transcript (Tr.) 325.) In addition to instruction in music, 30
such as lessons in voice, ear, harmony, and instruments, the College provides courses on the
practical or business aspects of the music industry. (Tr. 326, 327–328.) The school attracts
students from around the globe.
Lawrence Simpson serves as both Provost and Senior Vice President for Academic35
Affairs. His staff includes Jay Kennedy, Vice Provost and Vice President for Academic Affairs;
Rob Rose, Vice President for Special Programs; Rich Vigdor, Director of Academic Budgeting
and Administration; and Jeanine Cowen, Vice President for Curriculum and Program Innovation.
(Tr. 327.) He also oversees the three academic divisions, each led by a dean: Professional
Performance (Matt Marvuglio), Professional Education (Darla Hanley), and Professional Writing40
and Music Technology (Kari Juusela). The deans are responsible for the 37 departmental chairs
and assistant chairs in their respective divisions. (Tr. 326.)

2 There is also a satellite campus in Valencia, Spain.
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3
The Collective-Bargaining Agreement
The faculty is unionized. The Berklee Faculty Union has been the exclusive bargaining
representative of the units since 1985. The most recent collective-bargaining agreement (CBA) 5
between the parties is effective for the period September 1, 2010, to November 3, 2013. (Joint
Exhibit (Jt. Exh.) 2.) According to the CBA, the Union consists of two units: a full-time and a
part-time unit.3
The full-time unit includes all 9-month salaried teaching faculty employed by Berklee 10
College of Music at its Boston, Massachusetts campus. Those faculty members’ salary levels
depend on their rank (as professor, associate professor, assistant professor, or instructor), and
they receive full health, dental, and 403(b) benefits. (Jt. Exh. 2 at 50–66; Tr. 351.) Full-time
faculty are required to schedule office hours as well as attend weekly department meetings and
perform “Service to the College” assignments. (Jt. Exh. 2 at 40, 41.)15
The part-time unit includes all hourly teaching faculty employed during the academic
year by Berklee College of Music at its Boston, Massachusetts campus. They have either a 1-
year contract or a 3-year contract. Those on the 1-year contract teach on an as-needed basis.
They have no salary guarantees and are paid only for the teaching units credited for classes they 20
teach, as well as for office hours and weekly department meetings. (Jt. Exh. 2 at 1, 45–46.)
They may be eligible for partial health benefits. Those on a 3-year contract are guaranteed a
minimum of 13.5 teaching units per semester, as well as full benefits, and are paid for office
hours and department meetings. (Jt. Exh. 2 at 34; Tr. 51, 350.)
25
Part-time faculty are not guaranteed employment for any subsequent semester, except as
provided in the contract. For example, a part-time faculty member who has taught 27 or more
teaching units per academic year for 3 consecutive academic years (and has received satisfactory
performance evaluations each such year) will receive a contract to teach 27 or more teaching
units per academic year for the next 3 consecutive academic years. Those 3-year contracts will 30
continue to be renewed provided the faculty member maintains a teaching schedule of 27 or
more teaching units per academic year. (Jt. Exh. 2 at 14, 21.)
Faculty workload is calculated according to weighted teaching units. Classes are
weighted as follows. Classes such as instrument lessons, where there is no outside work or 35
preparation, are paid 1 teaching unit per hour. If there is some but limited outside work, the
faculty member is paid 1.18 teaching units per hour. However, if there is a great deal of
preparation required as well as time spent grading, such as for lecture classes, the faculty
member is paid 1.25 teaching units per hour. (Jt. Exh. 2 at 38; Tr. 89–90.)
40
The CBA covers faculty working conditions, including the maximum number of
consecutive hours per day an individual can teach, and references maximum student enrollment
for classes. (Jt. Exh. 2 at 35–37.) However, the college determines what courses will be offered;

3 Of the roughly 580 faculty members, approximately 40 percent are full-time and 60 percent are part-
time. (Tr. 72).
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what faculty member will teach what course, regardless of the instructor’s preferences or
specialty; when the course will be taught; and where it will be taught. (Jt. Exh. 2 at 35, 38, 44,
46.)
The CBA contains a “Management Rights” clause, article XXXIV:5
A. All management rights, powers, authority and functions, whether heretofore or
hereafter exercised, and regardless of the frequency or infrequency of their
exercise, shall remain vested exclusively in the Employer. It is expressly
recognized that such rights, powers, authority and functions include, but are by no 10
means whatever limited to, the full and exclusive control, management and
operation of its business and its affairs, including the determination of the extent
of its activities, business to be transacted, work to be performed, location of its
offices and places of business and equipment to be utilized. The Employer and
the Union agree that the above statement of management rights is for illustrative 15
purposes only and is not to be construed or interpreted so as to exclude those
prerogatives not mentioned which are inherent to management, except insofar as
expressly and specifically limited by the provisions of this Agreement.
B. This Article applies to both full-time and part-time faculty as described at 20
Article I.
(Jt. Exh. 2 at 64.)
The CBA includes article XXXVII, “Waiver of Right,” at article XXXVII:25
A. The failure by either party to insist in any one situation upon performance of
any of the terms or provisions of this Agreement shall not be considered as a
waiver or relinquishment of the right of the Employer or the Union to future
performance of any such terms or provisions, and the obligation of the parties to 30
such future performance shall continue. It is understood that neither party gives
up the right to argue to prove the assistance [sic] of a past practice.
B. This Article applies to both full-time and part-time faculty as described in
Article I.35
(Jt. Exh. 2 at 67.)
It also contains an integration clause, “Pre-Existing Rights, Privileges or Benefits,” article
XXXVIII:40
The parties acknowledge that during the negotiations which resulted in this
Agreement, each had the unlimited right and opportunity to make demands and
proposals with respect to any subject or matter not removed by law from the area
of collective bargaining, and that the understandings and agreements arrived at by 45
the parties after the exercise of that right and opportunity are fully and exclusively
set forth in this Agreement. Therefore, the Employer and the Union, for the life
JD–64–13
5
of this Agreement, each voluntarily and unqualifiedly waives the right, and each
agrees that the other shall not be obligated to bargain collectively with respect to
any subject or matter not specifically referred to or covered in this Agreement and
such expression is all-inclusive. This Agreement constitutes the entire agreement
between the parties and concludes collective bargaining for its terms, subject only 5
to a mutual agreement to amend or supplement this Agreement.
(Jt. Exh. 2 at 68.)
Course Offerings10
At the present time, the college offers 12 majors and the course catalog includes over
1200 courses with 2600 sections. (Tr. 329.) The college’s course catalog is developed by the
Curriculum Committee, which is headed by Jeanine Cowen, Vice President for Curriculum and
Program Innovation. Various members of the faculty, administration officials, and students 15
serve on the committee, including the three deans. (Tr. 250.)
The course offering list in the college catalog is reviewed annually by the curriculum
committee. Some courses are eliminated, some are added, and others are changed. (Tr. 230–
231; R Exh. 4.) New courses are usually proposed by faculty; they have to be approved by the 20
department chair and division dean prior to submission to the committee, that submits its
recommendations to the provost. (Tr. 252–253, 259, 328, 330.) A course is deleted from the
catalog for a number of reasons: it is no longer current; the course content has been subsumed in
another course; the faculty member who taught it is no longer at the college; the course has been
replaced with another; it was never run due to not being populated (reflecting no student 25
interest); or it was never scheduled. (Tr. 253–254, 255–256; R Exhs. 1, 2.) Course proposals are
due by November 1 for the following fall. The committee begins its work at that time,
determining which classes will be offered the following year. Those decisions are constantly
reviewed and may be changed throughout the year, as circumstances dictate. (Tr. 257, 276.)
30
In February, the Academic Scheduling team, in consultation with the chairs, creates a
preliminary schedule for the fall semester, depending on the needs of the students, the students’
interests (including their majors), faculty preferences and availability, and classroom availability.
(Tr. 250, 274–275, 278–279.)
35
Course offerings are posted in April for the fall semester. (Tr. 276–277.) Currently-
enrolled students may sign up at that time, although changes may still be made to the course
offerings, for a variety of reasons.4 (Tr. 283, 288.)
After the initial April registration period, the department chairs review the class 40
populations and make whatever adjustments are necessary, cancelling some classes and adding
others, so that students’ needs are met and faculty and classroom space are used most efficiently.
(Tr. 279–282.)

4 Incoming freshmen do not select their own classes but are assigned to classes by the college. (Tr.
278.)
JD–64–13
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In August, the college has a good idea what the student population will be in September.
(Tr. 283.) By that time, students have registered, so there will be few additional changes. The
chairs and the committee assess the schedule again and make additional revisions, such as
cancelling classes that are not going to be viable due to low population or adding needed classes.
(Tr. 283–284,) Classes may be cancelled any time up to the end of the drop/add period (the end 5
of the first week of classes).5 (Tr. 289, 293.) Even classes that are reasonably well populated
may be cancelled if, for example, the instructor was needed to teach another class. (Tr. 289.)
The college established maximum and minimum numbers of students for each class,
based on the nature of the class, so the students would receive the greatest pedagogical benefit. 10
(Tr. 261–262.) These numbers were included in all new course proposals presented to the
curriculum committee. (Tr. 217, 230, 261.) However, maximums and minimums were treated
differently. Maximum class size is referenced in the CBA. (Jt. No. 2 at 35.) The CBA does not
specify the maximum size of each class but states that those maximums are determined by the
senior vice president for academic affairs with input from the faculty; that occurs when a15
proposed course is added to the catalog. Article XXIV(C) provides that no class may be
assigned more than 10 percent above that maximum size without the prior approval of the
affected faculty member. In general, smaller elective courses had a maximum class size of 8–10
students; core courses and larger electives had a maximum class size of 15–19 students. (See
GC Exh.16; Tr. 177, 268.)20
The CBA is silent as to minimum class sizes. Cowen testified that, although each class
had a set minimum, they had ranged from 1 (for directed study or lessons) to 10. (Tr. 268.)
Further, they were flexible in application; they were not required to be met in order to run a
class, but were presumed optimal numbers.6 (Tr. 295–296, 301, 394.)25
During Cowen’s tenure, the committee had been carefully reviewing the minimums, and
had begun applying the following general standard: the minimum would be 33–35 percent of the
maximum number of students for the class. (Tr. 233–234.) However, those numbers were not
strictly adhered to when deciding whether to cancel a class; exceptions could be and frequently 30
were made.7 Classes were often conducted despite having fewer than the minimum number of
students, normally three or four. (Tr. 54, 60–62, 72–74, 260; R Exhs. 3, 4.) Indeed, some ran
with but one student, even if it were not an individual instruction class such as instrument
lessons. (Tr. 74, 417–418.) Classes were run below the minimums in instances such as when the
class was required for graduation, or was a prerequisite for other sequential classes, or the class 35

5 Last minute changes to the number of registrants for a class create a “snowball effect.” When a
student registers for a different class, leaving an opening in the class s/he was in, that may be filled by
another student who concurrently drops a class s/he had been in, leaving that seat open. (Tr. 284, 285.)
Additionally, incoming students are tested and auditioned in September to determine their skill level, and
to ensure that they are placed in appropriate classes; those results can also affect the number of students in
a particular class. (Tr. 278–279, 286–288.) Also, some students fail to register for school, dropping all
classes. (Tr. 285, 291, 292–293.)
6 Those minimums did not apply to individual instruction classes or self-defined classes, such as trios
or quartets. (Tr. 265–266.) Occasionally, those classes ran with fewer students than defined, since the
instructor could play the missing instrument.
7 GC Exh. 23 reflects the number of students enrolled in all classes that were cancelled in the
2010/2011 and 2011/2012 academic years. Most had two or fewer students enrolled.
JD–64–13
7
was only offered periodically and the students may not have another opportunity to take it; or the
class may still be viable despite not meeting the minimum; or there were few individuals
qualified to take the class; or it was a new prototype class that was being “piloted.” (Tr. 56, 59,
264, 295–296, 300–301; GC Exh. 3.) Cowen testified that most classes, perhaps 85–90 percent,
routinely run with well over the minimum number of students, closer to the maximum number. 5
(Tr. 297.)
Change to Course Population Minimums
Changes to course populations were occasionally made when a proposal for such was 10
submitted to the committee. Further, in recent years, the committee had taken the initiative to
review course populations when changes to a class were proposed that did not involve
minimums, in order to ensure that they were appropriately set. (Tr. 265–266.) They especially
scrutinized courses that were similar in nature. (Tr. 267.)8 However, there had been no broad,
overall review of course population minimums. (Tr. 272.) In May of 2011, the curriculum 15
committee unanimously recommended to the Senior Vice President for Academic Affairs and
Provost, Simpson, that the required minimums be changed to 33–35 percent of the established
maximum course populations, thereby increasing many of them. (GC Exh. 22.) The goal was to
have more standardized minimum course populations for “like” classes, with most minimums at
five or more students. (Tr. 233–234.) Cowen explained that, over time, as new courses were 20
added to the catalog, the minimum numbers were not comparable to the numbers set for similar
older courses already in the catalog. (Tr. 267, 273.) The committee felt there should be a
minimum of five or more students whenever possible, except for classes that were, by their
nature, smaller, such as a trio, and that minimums of three made “no sense” other than in those
limited situations. Cowen explained that the committee discussed efficacy of student learning 25
and the student learning experience, and the benefit of diversity of opinions in reaching the
minimum of five. (Tr. 235–236.)
Simpson accepted the recommendation to increase the course population minimums.9 He
testified that he wanted to create uniform standards for the courses. (Tr. 335, 395.) The 30
minimums were developed by the curriculum committee with the deans. He considered those
minimums a guide that add structure, but are important for the students’ need for diversity of
experience and to introduce discipline into the curriculum. (Tr. 334, 335.) In addition, he was
concerned about the premium on space needed to conduct classes, and appropriate space for each
class. He corroborated the other witnesses’ testimony that classes were run and continue to be 35
run although the registration is below the course population minimums. (Tr. 334.)
The changed course population minimums were not published in the spring of 2011, and
no action was taken at that time. Cowen testified this was because the classes for the fall of 2011
had already been determined, and the curriculum for spring 2012 was well underway, so fall 40
2012 was the earliest the new policy could be implemented. (Tr. 297–298.) Cowen testified that
the change in minimum course populations was not announced, that course minimums had never

8 In 2010, the Liberal Arts chair had requested that the minimums and maximums for all courses in
that department be standardized (the “LART sweep”). (Tr. 271–272.)
9 The Acting General Counsel did not subpoena records of the new course population minimums so
these numbers are not included in this record. (Tr. 218.)
JD–64–13
8
been announced. (Tr. 298.) Cowen testified that the course population minimums were “just a
framework. It’s a bar that makes our administration of courses just a little bit easier to gauge . . .
[I]t gives us real data as to what the decisions are that we’re making, rather than, you know,
intuition and anecdote.” (Tr. 295.) “[I]t’s an administrative tool. . . . We have to be able to
make determinations and be using this data to do that.” (Tr. 296.) Further, “it’s just an 5
administrative detail . . . it’s always been a tool that has been used with Academic Scheduling
and the chairs. I send out big notices to chairs frequently about important things. It was seen as
a tool to help us manage our schedule and nothing more . . . (T)here was no expected impact.
There was no material change in the way we were going to do our operations.” (Tr. 298.)
10
Likewise, Simpson testified that he did not notify the Union of the new course population
minimums because he did not consider it a change, but “business as usual,” an “administrative
detail.” (Tr. 337.) Minimum course populations are not covered by the contract, and
determining those minimums is a management right. Since he did not consider there to be any
substantial change, there was no need to notify the Union. (Tr. 298, 312, 337.) Further, he did 15
not believe that faculty were negatively impacted. The minimums were objective standards;
however, they were not “set in concrete.” (Tr. 334, 397.) Simpson explained that the deans are
responsible for implementing the policy in communication with their chairs.
Cowen testified that the curriculum committee did not consider the budget when making 20
its decisions; the role of the committee was to consider pedagogy and the student experience.
(Tr. 235–236, 261–262, 298–299.) Nor did the committee discuss the potential impact on part-
time faculty.10 (Tr. 312.)
The committee has deans, chairs, faculty, and students as members but it does not include 25
a representative of the Union. The committee does not consult the Union about its decisions, and
specifically did not consult the Union regarding the change to the minimum course populations.
(Tr. 312–313.)
On August 21, 2012, the change to minimum course populations was announced by 30
Simpson, to be implemented that fall. Simpson forwarded a spreadsheet prepared by the
curriculum committee to the three deans listing the new minimums for each course.11 (Tr. 387–
389, 394.) The deans advised their department chairs, at least some of whom advised their
faculty. Individual class enrollments in their departments were reviewed and recommendations
could be made whether to cancel any classes based on the new minimums. (Tr. 388–389; GC 35
Exh. 2.)

10 The college attempted to find replacement classes for faculty members whose classes were
cancelled. In most, but not all, instances, those efforts were successful. (Tr. 406.)
11 Simpson testified that the change to course population minimums was not new information to the
deans, since there had been ongoing discussions about the issue, especially through the curriculum
committee, of which the deans were members. (Tr. 389.) However, Dean Juusela was the only dean
present at the May 31, 2011 meeting when the policy change was recommended. (GC Exh. 22.)
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Simpson’s Initiative to Reduce the Number of Elective Courses
As provost, Simpson was concerned about the large number of electives in the course
catalog, that he felt were not added in an efficient and disciplined manner. Approximately 200
new electives had been added between 2008 and 2010. (Tr. 329–330.) He also felt some of the 5
courses were being run too frequently. This created a challenge when scheduling classes, as
there was a premium on space, and there could be difficulty assigning faculty to all those classes.
In order to take better control of the course offerings, he set a goal of reducing the number of
electives by 10 percent. (Tr. 331.) They would not all necessarily be eliminated from the
catalog, but could be offered less frequently. (Tr. 420.) Class population over time would be 10
reviewed, to determine the level of student interest in those classes, that would assist in deciding
whether to cancel a class.12
Simpson testified that he believed that development of the curriculum must be
disciplined, and that electives should be given particularly close review. (Tr. 330.) He felt the 15
school’s catalog included too many electives that were not justified by student interest. (Tr. 330,
331, 333.) If students were not signing up for courses, that indicated there was insufficient
interest to offer the class, or to offer it so frequently. This was important because classroom
space was at a premium; it could be challenging to schedule classes appropriately. Simpson
wanted to reduce the number of electives offered by 10 percent, down to a total of about 1100. 20
Those classes could be removed from the catalog but, more likely, simply offered less
frequently. (Tr. 332.) He met with the deans and vice presidents in Academic Affairs, to discuss
which of the 1200 classes should not be offered that semester. (Tr. 332, 334). He insisted that
the curriculum committee’s recommendation to increase the course minimums was “absolutely
not” a budgetary issue and was unrelated to this initiative. (Tr. 343, 335.) Rather, he wanted to 25
introduce more discipline, to better control the classes offered. As Cowen testified, Simpson
stated that factors considered included whether a student needed the course to graduate, or the
student had a program need for the class. (Tr. 332–333.)
Faculty Responses to the Changes30
On receiving notice of Simpson’s initiative to reduce electives, Kenn Brass, Chair of the
Professional Music Department, sent an email to his department faculty members on August 17,
2012, advising them of some anticipated changes. (GC Exh. 4.) He stated, in pertinent part:
35
I write this email with important information regarding course scheduling for the
ensuing Fall 2012 semester. Unfortunately, a mandate from Academic Affairs
has made it likely that schedules will have to be modified for a good number of
faculty.
40
Without going into too many particulars, following is what we are looking at:

12 Class population is distinct from minimum course populations; it is simply the number of students
enrolled each semester. A decision could be made not to offer a class for the semester or drop it from the
catalog even if it met the minimums, if it was discovered that, over time, it had low populations and
therefore little student interest. (Tr. 415.) Dean Marvuglio’s email response to Cecere, that his class was
cancelled for “low population” despite having five students registered, is an example. (GC Exh. 17, 18.)
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1) Part-time faculty who are not on a 3-year contract may lose courses/
teaching hours.
. . . .5
5) Underpopulated sections (below the minimum) will be cancelled for both part-
time and full-time faculty.
That is all the information I am able to share for now. Individual contact will be
forthcoming to inform you of how these changes will actually affect your Fall10
schedules as that information becomes available. . . .
Anne Peckham, Chair of the Voice Department, sent an email to Joyce Lucia, a part-time
associate professor, on August 17, 2012, regarding her fall schedule.13 (GC Exh. 32.) It stated,
in part:15
Due to strict budget cuts enacted throughout the College of Music, Matt
Marvuglio14 has asked Chairs to cut underpopulated classes in all PPD course
offerings for Fall 2012. Your classes, PSVC 131-001, PSVC 231-001, PSVC
232-001, are being removed from your schedule this Fall. . . .20
Lucia responded, in part:
[F]or the PSVC 131-001, I simply need to move one person from the other
section, in order to populate the class of 3. As far as PSVC 232—I understand25
that with a population of Zero, it would be cut. Lastly, Sean told me that diction
would probably populate since the Fall semester had so many incoming voice
principals. . . .”
Peckham replied:30
I’m sorry, but the decision has been made and is final. The classes are cancelled.
These are college-wide changes made in conjunction with Larry Simpson, all the
Deans and all the Chairs.
35
Lucia had been scheduled to teach four classes (LHUM-100, PSVC 231-100, PSVC 131-
001, and PSVC 232-001). As of August 17, the date the three classes were cancelled, PSVC
231-100 had three students registered; PSVC 131-001 had two; and PSVC 232-001 had none.15
(GC Exh. 25, pp. 3, 5.) She was not offered replacement classes for any of the three Voice
classes she lost. (Tr. 450.) Therefore, she contacted Michael Mason, Assistant Chair of the 40

13 See R Exh.10 for the college’s record of student enrollment (2) in her American Diction class when
it was cancelled. (Tr. 304–305.) The class had had a minimum of 4 in 2011. (Tr. 307; R Exh. 11.)
14 Dean of the Professional Performance Division.
15 Brass testified that the course had historically low populations but had been “shored up” in the past.
(Tr. 460.) Lucia testified that had been accomplished by moving students from one section to another.
(Tr. 448.)
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Liberal Arts Department, seeking a replacement class. She obtained a second LHUM-100 class
(Artistry, Creativity and Inquiry Seminar). (Tr. 450.) She testified that is a much more
demanding class than the Voice classes that were cancelled. (Tr. 451–454.)
Subsequently, shortly after Simpson’s August 21 notice to the deans of the change in 5
course population minimums, the following emails were sent.
Darla Hanley, Dean of the Professional Education Division, sent an email to her
department chairs on August 21, 2012. (GC Exh.16.) Attached was a list of the courses and
number of registrants. That attachment indicated prior minimums of three to five students for 10
most classes, and new minimums of five to seven students.
I learned today that course minimums have been increased for the fall semester
(attached). Please review individual class enrollments for your department—now
in light of these adjustments—and let me know your thoughts about canceling any15
sections. We are still striving to meet the requested budget reductions. . . .
Suzanne Hanser, Chair of the Music Therapy Department, then sent an email to her
department faculty on August 29, 2012, advising them of important policy changes, and
attaching a copy of “Academic Policy Changes,” dated August 28, 2012. She indicated that no 20
classes in that department were affected that semester. (GC Exh. 15.)
On August 21, 2012, Brass sent another email advising his department that the minimum
number of registrants had been raised for certain classes. (GC Exh. 5.)
25
Well, another bomb has been dropped—MINIMUM ENROLLMENT HAS
BEEN RAISED TO SEVEN (7) FOR NEARLY ALL COURSES! What this
now means is that courses are in jeopardy that were not before.
Having only learned about this a couple of hours ago, I do not know where all the 30
Pro Music courses stand. Contact will be made with you tomorrow as I gather
further information.
On August 22, 2012, Brass sent an email to Tom Stein, a professor in the Professional
Music Department. (GC Exh. 6.) It read, in pertinent part:35
. . . Further, this situation is an ever-moving target. I am not sure if you read my
latest email from last night, but a new wrinkle has been added. Minimum
population for nearly all classroom instruction has been raised to seven (7)! So,
many more courses are in jeopardy than we knew of just a day ago. It also means40
that it will be the part-timers who will suffer as the college looks to assign full-
timers to the max. I truly believe some part-timers could even lose their total
teaching schedules less than three weeks before classes begin!
JD–64–13
12
Brass sent an email to Linda Gorham, a part-time professor in the Professional Music , on
August 23, 2012, regarding one of her classes, “Subject: Bad News!”16 (GC Exh. 29.)
I am so sorry, but it looks as if we will not be able to offer the PM-320 course for
the Fall. This of course is due to the recent change that raised course minimum 5
populations from 3 to 7. . . .
Gorham’s PM-320 class, Investment Principles for Professional Musicians, had
previously had a minimum course population of three.17 There had been three students registered
for the class as of April 2012, when it was initially cancelled.18 It was reinstated but those three 10
students did not re-register for it. Another three students were registered in August when it was
finally cancelled. (GC Exh. 27–29; R Exh. 12; Tr. 207–208, 241–242, 309.) Cowen testified
that minimum course population was not the reason for cancelling that class but she could not
explain why Gorham’s class was cancelled.19
15
Brass testified that he misspoke in his emails, regarding cancelling classes for not
meeting the minimum populations. He said that, in fact, he did not know how the new policy
was being implemented. (Tr. 461.) He noted that underpopulated courses continue to be run if a
student needs it or it is a popular class. (Tr. 461–462.)
20
Gorham was not offered a replacement class. However, on August 28, Michael Mason,
Assistant Chair of the Liberal Arts Department, sent an email to a group of 18 faculty members,
including Gorham, advising that two sections of LHUM-400, Professional Development
Seminar, were available. (GC Exh. 30; Tr. 290.) Initially, she offered to take one of the classes,
but withdrew once she realized she had misread the posting, thinking it was LHUM-100 25
(Artistry, Creativity and Inquiry Seminar) for incoming students, rather than a sixth semester
professional planning course for musicians. She explained that, as a financial planner rather than
a musician, she did not feel well qualified to teach LHUM-400 despite having taken training to
teach that class. (Tr. 411, 435–437).20 She discussed her reluctance to teach the LHUM-400
class with Brass and the possibility of teaching LHUM-100 at some future point in time. (Tr. 30
436, 459.)

16 See R Exh. 12 for the college’s records of her course cancellations for fall 2012. (Tr. 309.)
17 Gorham testified that her normal schedule is to teach one section of PM-320 and three sections of
PM-310, Financial Management for Musicians per semester. (Tr. 429.)
18 Gorham explained that it appeared the class was cancelled in April due to a clerical error; a
prototype class that she had was supposed to be cancelled. (Tr. 432–433.)
19 Cowen thought perhaps it was cancelled because Gorham was qualified to teach a core class
(LHUM-100 and LHUM-400), but this was speculation on her part and, in fact, is incorrect. (Tr. 205,
208–209; GC Exh. 29.) She testified that Gorham was requested to teach a section of the core class at
each level, LHUM-100 and LHUM-400 but that is not supported by the evidence. (Tr. 205, 290–291,
459.) She then conceded that she did not know the details of the replacement class assignment. (Tr. 205–
206.)
20 Respondent argued that Gorham could have taught the class, and therefore was not adversely
affected by the cancellation of her original class. However, while Gorham did withdraw from
consideration, the Respondent did not establish that Gorham would have been assigned the class in any
event, as 17 other instructors received that notice as well.
JD–64–13
13
Ron Savage, Chair of the Ensemble Department,21 sent an email to the Ensemble faculty
on September 4, 2012, advising them of his knowledge of the situation. (GC Exh. 7.) Savage’s
email read, in pertinent part:
A number of you have contacted Sean and me about class cancellation concerns 5
and the sudden change in ensemble population minimums.
As of today Tuesday 9/4/2012 NO ensembles, PS courses or Harmonic
Consideration classes have been cancelled and the Dean has been supportive of
keeping these open until the end of placement. At the end of placement, low 10
populated classes will be cancelled as they have been in the past.
There have been changes to the minimum populations in a small number of
classes. 17 (ensembles and PS courses) in total. These changes mostly affect the
big bands and choirs moving from a minimum population of 4 to a minimum of 7. 15
Several small band ensembles changed from a minimum of 4 to 5 and PS courses
changed from a minimum of 4 to 7.
. . . .
20
At the end of placement before cancelling low populated ensembles, I will first
look at the functionality of the instrumentation of said band before making a final
decision to cancel.
Allan Chase, Chair of the Ear Training Department,22 sent an email to his department 25
faculty on September 4, 2012. (GC Exh. 2.) Among other things, he noted:
Late this summer, some changes have been instituted to help Academic Affairs
meet its budget. Chairs and leadership discussed these in late summer and the
details have just become available. Most of these changes will have no impact on 30
Ear Training classes or faculty.
One change is in the minimum number of students per section. Core classes
and the larger electives with maximum class sizes of 15 to 18 now have a
minimum population of 7. Electives whose maximum population is 8 or 10 35
(PFET classes, for example), now have a minimum of 4. Classes whose
maximum is 12 (a few electives) have a minimum of 5. In the past, the
minimums were 3 for older courses, and 5 for some of the more recently created
electives.
40
In Ear Training, we’ve had only two or three sections run per semester that would
be affected by this change of minimums, mostly in specialized electives. I can’t
be 100% sure until the numbers are final, but at present, I don’t expect anyone in
Ear Training to lose teaching hours due to these higher minimums. We’re

21 In the Professional Performance Division.
22 Also in the Professional Performance Division.
JD–64–13
14
watching enrollments closely each day to try to avoid any loss of classes for
students and faculty. . . .
Union Response to the Changes
5
The union president is Willis (Jackson) Schultz. Schultz is a professor in Jazz
Composition and an adjunct professor in several other departments. Michael Scott was the past
union president23 and is a professor in the Harmony Department. Both were on the union
bargaining teams that negotiated the current and all prior contracts with Respondent.
10
Both testified that, at least since 1978, the college’s minimum course populations were 3
to four students. (Tr. 60–62, 65, 72.) Nonetheless, classes often ran with fewer than the
minimum number of students enrolled. (Tr. 74.) Both Schultz and Scott have had informal
meetings over the years with the various provosts, attempting to informally resolve disputes,
including those arising from cancellation of courses. (Tr. 61–62, 65.)15
Schultz became aware of the various policy changes when various faculty members
forwarded to him emails they had received from their chairs. (Tr. 76, 78–80, 97–98; GC Exhs. 2,
4, 5, 6, 7.) He discussed with Scott the changes in minimum course populations. They were
concerned because it would result in classes being cancelled and would affect some part-time 20
instructors. (Tr. 88, 89, 91.)
On August 23, 2012, Schultz sent an email to Simpson requesting that the parties engage
in collective bargaining. (GC Exh. 8.) While he objected to a number of the new unilateral
changes including cancelling classes earlier than had been done in the past, he specifically noted 25
his concerns about the new policy regarding minimum course populations.
. . . It has also come to our attention that the College has suddenly changed the
class population minimums in various departments across the College. . . . The
College has neither given the Union notice nor offered to negotiate about the 30
impact of these changes. This is to demand that the College cease implementation
of these substantial changes until you consult and negotiate with us over the
impact of these or any proposed changes on the employment of our faculty
bargaining unit members.
35
Simpson did not respond directly to the bargaining request, but suggested that they “sit
down at your earliest convenience after Labor Day to discuss these matters.” (GC Exh. 8.)
Schultz replied that such a delay was not acceptable, as follows. (GC Exh. 9.)
40
A meeting after Labor Day may work for you but it doesn’t work for me and the
many faculty potentially affected by this unilateral change in working conditions.
While you are enjoying your time away from the College, many of our faculty
now can’t, worrying about loosing [sic] teaching hours, their health benefits, and
even their jobs. If you can agree to the demand that the College will cease 45

23 From 1986 to 2011. (Tr. 52.)
JD–64–13
15
implementation of these substantial changes as stated in my first email, then our
meeting can happen as you suggested, after Labor Day. Otherwise I’m
free tomorrow.
Simpson did not reply by email. The two spoke by telephone the next day, August 25, 5
2012, following which Schultz sent an email to the union executive committee regarding the
discussion. (Tr. 84–85, GC Exh. 10.)
Hi Gang. I just got off the phone with Larry and I am very frustrated. It was a
long conversation but I will narrow the focus here. He agreed that they screw 10
[sic] up and should have brought the union in before implementing these changes.
Sorry! He tried to assure me that they didn’t deliberately wait till [sic] everyone
was off campus but I wouldn’t hear of it. He said no one is loosing [sic] their job
when in fact, he just hired some new faculty to add to our ranks. He said that
nothing was happening with regard to implementing these changes because 15
everyone was away to which I replied “then that means you agree to the union’s
demand to cease the implementation of these substantial changes.” He said I am
free to interpret it that way but that was not what he was saying. He would not
write a cease order to the Deans. He said these changes were put in place to deal
with the budget shortfall in academic affairs not because of the over-leveraging 20
on the two projects. I wouldn’t buy it. Finally he said that because everyone
from his team is away, it would be impossible to meet before Labor Day but that
we could all meet on Tuesday (9/4) or Wednesday (9/5). He said 9/5 would be
better and once we see their presentation we would all understand the reasons
why this is happening. We will, really? I doubt it. I said that 9/4 would be better 25
just because. I told him that these actions have destroyed their credibility in the
eyes of the union and the faculty. Not a good move as we head into bargaining
. . . .
He followed up with a letter to all bargaining unit members dated August 28, 2012, 30
outlining his concerns. (GC Exh. 11.) Eight of those nine concerns were based on Brass’ emails
to his department faculty. (Tr. 86, 125.)
While the cat’s away the mice will play. While we are all enjoying the last few
weeks before returning to begin the fall semester, the Administration has been35
busy. Without any consultation or negotiation with the Union, they have begun to
implement new policies which will impact all faculty but especially our part-time
faculty. Below are some of the highlights:
1) . . . .40
2) Minimum enrollment has been raised to seven (7) for nearly all courses.
3) Underpopulated sections (below the minimum) are currently being cancelled
for both part-time and full-time faculty.
4) Part-time faculty who are not on a 3-year contract may lose courses/teaching
hours.45
. . . .
JD–64–13
16
Though these changes affect all faculty, the impact on our part-time faculty is
devastating. They face the loss of hours as well as the potential loss of health
benefits, a 3-year contract or worse, a job. . . .
5
Your Union just found out about this a few days ago and we are looking at every
possible angle to stop its implementation. . . .
Simpson and Schultz agreed to meet, along with their teams, on Wednesday, September
5, and to have a private discussion before that, on Monday, September 3, 2012. (GC Exh. 12.) 10
Simpson wrote to Schultz, in pertinent part:
. . . But I really want to talk to you one-on-one before the meeting on Wednesday.
If you are open to it, I would like to talk with you tomorrow. I know it is a
holiday, but I think we can make progress in advance of Wednesday if you and 15
me talk. I don’t want the meeting on Wednesday to be a “line drawn in the sand”
meeting. You and I have made progress over the course of the last year and I
don’t want our progress to be thwarted. I have information to share with you that
can shed light on where we are, but we need to talk. . . .
20
That discussion occurred on Monday evening, after which Schultz sent an email to his
executive board members, who would be attending the Wednesday meeting. (GC Exh. 13.) He
advised that the union attorney would not be present on Wednesday since the college’s attorney
was not coming, and that:
25
He [Simpson] had my e-mail to faculty in hand and was quoting from it. I think I
got their attention. He referred to it as inflammatory language and that I didn’t
have the facts. I said that if he had contacted the Union before implementing
these changes there may have been no need for the letter. The letter I wrote was
on him because he neglected to involve the Union and that I stand behind 30
everything I put in that letter. Anytime you implement policy that affects faculty
and you don’t involve the Union, you now know what to expect. He asked me
about Wednesday’s meeting and I said they should treat it as if it was the meeting
we should have had a month ago. . . .
35
Attending the Wednesday meeting for the college were: Simpson; Jay Kennedy, Assistant
Provost; Mac Hisey, CFO; and the three deans. Attending for the Union were: Schultz; Danny
Harrington, vice president; Wendy Rolfe, vice president for part-time faculty; Jeff Perry,
secretary/treasurer; Will Sylvio, office manager; and Dennis Cecere, Professional Performance
faculty representative and Richard Grudzinski, councilor-at-large. Perry took notes for the 40
Union, summarizing the discussion. (GC Exh. 14; Tr. 100, 156.) Schultz opened the discussion,
distributing a list of nine issues,24 and stating that the purpose of the meeting was to discuss the
changes in course population minimums and course cancellations. (Tr. 100, 160.) He then

24 See GC Exh. 11 for those issues. Since the nine issues were based on Brass’ emails, certain of the
topics pertained specifically to the Professional Education, not the entire college. (Tr. 101.)
JD–64–13
17
turned it over to Simpson to respond to the concerns.25 Simpson again agreed that he should
have advised the Union in advance of the policy changes, but felt that there was no violation of
the contract. He addressed each of the nine points. He explained that the changes were being
made to address budgetary issues, since the college couldn’t increase tuition.26 (Tr. 100, 102–
103, 160, 342.) He said that, of 2600 classes offered, 41 were cancelled that semester. Simpson 5
reviewed the number of classes cancelled in the prior four semesters (58, 89, 63, and 56, from
spring 2012 to fall 2010.) He conceded that the part-time faculty may lose hours since they work
as needed. He said that since the class maximum sizes cannot be increased, this was the option
chosen. He also acknowledged that faculty had been cooperative in accommodating
overpopulated classes. The group discussed the college’s fiscal challenges and what led to these 10
policy changes. However, no bargaining occurred and no agreement was reached, though the
meeting ended amicably. (Tr. 104–105, 341.)
Post Implementation of the Unilateral Change
15
On October 1, 2012, Simpson sent a “Provost Update” (GC Exh. 24), informing all
faculty that, with regard to cancelled classes:
We offered 2600 sections this fall semester and cancelled only 3% of the sections
and these were due, in most cases, to low enrollment.2720
Although 61 classes ran in the fall of 2012, despite not meeting their minimum course
populations, 40 or 41 sections were cancelled that were below the minimums. (Tr. 299, 338,
400; R Exh. 8.) In most instances, when an available faculty member’s class was cancelled, a
replacement class or other campus responsibilities were assigned. (Tr. 111, 406.) However, two 25
part-time faculty members, Lucia and Gorham, did not teach replacement classes in the fall of
2012.28
Cowen testified that no courses were cancelled solely because the number of students
registered fell below the new minimums. (Tr. 200, 203, 239–240.) She stated that only courses 30
with zero registrants were cancelled for that reason alone. (Tr. 204, 240.) Classes were

25 In addition to increasing class minimums, the college had also decided to cancel classes before the
end of the add/drop period, which was the end of the first week of classes. The administration felt that
would give the faculty member whose class was cancelled a better opportunity to take a replacement
class, while the Union felt that the action was premature since students still had time to sign up for the
class. (Tr. 340.) However, that change in policy is not an alleged violation herein.
26 Whether the change in course population minimums was motivated by budgetary or purely
pedagogical considerations is immaterial to my decision.
27 That is distinct from not meeting course population minimums. Also, the Acting General Counsel
noted that 3 percent of 2600 is 78. (Tr. 400.)
28 At trial, the Acting General Counsel contended that three bargaining unit members had been
affected, as far as had been determined at that time. Later, on p. 21 of the Acting General Counsel’s brief,
that number was reduced to two: Lucia and Gorham. However, the evidence shows that the only faculty
member who may have been affected by the change in course population minimums as of the date of the
trial was Gorham. Lucia’s classes did not even meet the previous minimums. No evidence was presented
as to the impact of the change in that policy on any other part-time faculty member although there may
have been additional effects in the fall 2013 semester.
JD–64–13
18
cancelled for a number of reasons; in some instances, the faculty member may be needed for
some other assignment, or may be unavailable for personal reasons. (Tr. 303.) And, as
described in the findings of fact, there were a number of factors that were considered when
deciding whether to cancel or run a particular class.
5
The majority of classes cancelled during the 2010–2011 and 2011–2012 academic years
had student enrollments of two or fewer when they were cancelled. Indeed, only 6 of the 275
courses cancelled during that 2-year period had more than four (4) students enrolled. (GC Exh.
23; Tr. 311–112.)
10
It is impossible to determine the reasons for most class cancellations, since the college
does not maintain records of those reasons, only a record that the class was cancelled. (Tr. 199,
203.) While the curriculum committee performs an annual review of the courses offered,
cancelling a scheduled class due to low registration is not a function of the committee. Rather,
the departments monitor classes and the decisions were made on a case-by-case basis, by the 15
chair, the dean, and Academic Scheduling. (Tr. 256, 276.) Classes ran when registration was
above and below the course population minimums, and they were cancelled when registration
was above and below the course population minimums. (Tr. 303.) It is, therefore, unclear what
exact role the minimum course populations played in those decisions, although it was one factor.
20
Unfortunately, the September 5 meeting did little to clarify the situation for the parties.
Simpson and the management team merely responded to the list of concerns raised by the Union;
the Union confused the change in minimum course populations with the reduction in electives
initiative. Simpson testified that he could not respond well to some of the concerns raised since
he did not understand what some of the points raised by the Union pertained to, and the Union 25
could not explain the basis for those points, since they came from Brass’ emails. (Tr. 341–343.)
Simpson was unaware of the source until the trial, and testified that he felt sure that, due to his
hitherto excellent relationship with the Union, the matter could have been resolved earlier had
that information been disclosed. (Tr. 343.) I suspect that is true, based upon my observations of
the parties, but that lack of communication and consequent misunderstanding has brought us 30
here.
III. ISSUES PRESENTED
1. Did the Respondent violate the Act by unilaterally making a change that was material, 35
substantial, and significant?
2. Did the Union waive its right to bargain either by contract language or by its conduct
during bargaining?
40
JD–64–13
19
IV. DISCUSSION AND ANALYSIS
A. Did the Respondent Violate the Act by Unilaterally Making a Change
that was Material, Substantial, and Significant?
5
An employer violates Section 8(a)(5) and (1) of the Act if it change the wages, hours, or
terms and conditions of employment of represented employees without providing the Union with
prior notice and an opportunity to bargain over such changes. See NLRB v. Katz, 369 U.S. 736,
743, 747 (1962). These are mandatory subjects of bargaining if the change has a “material,
substantial, and significant” impact on the terms and conditions of bargaining unit members. 10
Flambeau Airmold Corp., 334 NLRB 165, 165 (2001), citing Alamo Cement Co., 281 NLRB
737, 738 (1986); Carrier Corp., 319 NLRB 184, 193 (1995), citing United Technologies Corp.,
278 NLRB 306, 308 (1986); Peerless Food Products, 236 NLRB 161 (1978); Bethlehem Steel
Co. (Shipbuilding Div.), 136 NLRB 1500, 1503 (1962).
15
Where such unilateral changes take place during the term of a collective-bargaining
agreement, the employer must obtain the consent of the Union before it makes such a midterm
modification. See Carrier Corp., supra; NLRB v. Katz, supra; St. Agnes Medical Center, 287
NLRB 242 (1987); Wisconsin Southern Gas Co., 173 NLRB 480 (1968); Oak Cliff-Golman
Baking Co., 207 NLRB 1063 1964 (1973), enfd. 505 F.2d 1302 (5th Cir.1977), cert. denied 423 20
U.S. 826 (1975).
An employer’s duty to bargain with the union over mandatory subjects includes a duty to
bargain about the effects on employees of a management decision that is not itself subject to the
bargaining obligation. See First National Maintenance Corp. v. NLRB, 452 U.S. 666, 677, 679–25
682 (1981); Litton Business Systems, 286 NLRB 817, 819–821, 1133–1134 (1987), enfd in
relevant part 893 F.2d 1128, 1133–1134 (9th Cir. 1990), cert denied in relevant part 498 U.S.
966 (1990), revd. in part on other grounds 501 U.S. 190 (1991); Holly Farms Corp. v. NLRB, 48
F.3d 1360, 1368 (4th Cir. 1995), cert granted on other grounds 516 U.S. 963 (1995), affd. 517
U.S. 392 (1996). In most such situations, “[t]here are alternatives that an employer and a union 30
can explore to avoid or reduce the scope of the [effects] without calling into question the
employer’s underlying decision. See Bridon Cordage Inc., 329 NLRB 258 (1999).
The Board has held that “[a]n employer has an obligation to give a union notice and an
opportunity to bargain about the effects on union employees of a managerial decision even if it 35
has no obligation to bargain about the decision itself.” Allison Corp., 330 NLRB 1363, 1365
(2000), citing First National Maintenance Corp. v. NLRB, 452 U.S. 666, 681–682 (1981); Good
Samaritan Hospital, 335 NLRB 901 (2001). The employer has a duty to give preimplementation
notice to the union to allow for meaningful effects bargaining. Allison Corp., supra at 1366. It is
well settled that Section 8(a)(5) requires effects bargaining to be conducted “in a meaningful 40
manner and at a meaningful time. . . .” First National Maintenance Corp. v. NLRB, 452 U.S.
666, 681–682 (1981). Effects bargaining must occur sufficiently before actual implementation
of the decision so that the union is not presented with a fait accompli. Komatsu America Corp.,
342 NLRB 649, 649 (2004).
45
JD–64–13
20
I find that Respondent had the right to make the management decision to change the
course population minimums. However, the potential effects of that decision are material,
substantial, and significant—cancellation of classes causing loss of income; changed terms and
conditions when a different replacement course was taught. Those are mandatory subjects of
bargaining, and the Respondent had an obligation to bargain with the union over those effects. 5
The Respondent did not notify the union of the changes before implementation and refused to
bargain or to delay implementation when the union made those requests.
Respondent’s argument that it has the right to make inherently managerial decisions, as it
did in this instance, is well taken. It is within its discretion to set course population minimums.10
However, in this case, the Acting General Counsel does not contend that the Respondent was
required to bargain about the change in the course population minimums themselves. Rather, the
contention is that the Respondent was required to bargain about the effects of those changes, as
they have the potential to impact the wages and terms and conditions of employment of many of
the part-time faculty, which are material, substantial, and significant effects. If a class is 15
cancelled for not meeting the course population minimum, the part-time faculty member may not
be able to teach a replacement course and would thus lose that income; a replacement course
may not have the same number of teaching units, so there would be a difference in income; a
replacement course may not be comparable to the class originally scheduled;29 the individual’s 3-
year contract or eligibility to obtain a 3-year contract may be jeopardized if s/he does not teach 20
13.5 hours per semester or 27 hours per academic year; and the individual may lose layoff
protection or health benefits.
The college had established minimum course populations for all classes. Those numbers
were set when the course was added to the catalog, and ranged from 1 to 10. The college 25
changed those minimums in August 2012, generally increasing the minimums to five or more,
depending on the course, except for individual lessons or self-defined classes such as trios or
quartets. The Union was not notified of the changes in advance of implementation, but learned
of the changes through its members, via email notifications to faculty when the policy change
was implemented in August 2012. Simpson refused to bargain when Schultz demanded to 30
bargain about the effects of the new policy, and Simpson refused to delay implementation of the
new policy. He merely agreed to confer and explain the reasons for taking the action.
The Respondent argues that it had no obligation to engage in effects bargaining because
the change in course population minimums was not material, substantial, and significant, but 35
rather, was inconsequential. It asserted that there was no real change in policy and that no one
suffered any ill effects. Although the Board has accepted such a defense where the disputed
changes to working conditions constitute only a minimal inconvenience to employees, or are
essentially de minimis (see, e.g., Berkshire Nursing Home, LLC, 345 NLRB 220, 221 (2005)),
that defense does not apply here because the effects of this policy change are material, 40
substantial, and significant. The unilateral change to the policy at issue herein has the potential
to directly and significantly affect union members’ wages and conditions of employment, as
cancellation of a course for not meeting that minimum could deprive a part-time faculty member

29 For example, the replacement course may be more demanding in terms of time spent in preparation
and grading. See, e.g., Kendall College, 228 NLRB 1083 (1977) (violation found where school
unilaterally changed its past practice of consulting with faculty before publishing class schedules).
JD–64–13
21
of income for teaching that class if a replacement class were not available or the replacement
class had fewer teaching units, as well as make him/her ineligible for a 3-year contract and for
health benefits and layoff protection, and may affect the faculty member’s terms and conditions
of employment, if the class were more demanding as to preparation and grading responsibilities.
5
The Respondent asserted in its brief that “each and every semester Berklee has . . .
established and changed course minimums.” Respondent also asserted that class population was
but one of several factors considered when deciding to cancel a class. It further asserted that
many classes continued to be run despite being underpopulated.30 However, I do not find those
arguments persuasive, as discussed below.10
It may be true that course population was, in most instances, only one of several
considerations when deciding whether to cancel a class, but that argument still concedes that the
policy was a factor and had the potential to be the determining factor. Respondent’s argument
that this means it is not a unilateral change triggering the duty to bargain is baseless. It was the 15
determining factor in the cancellation of Gorham’s class, as discussed above in the Findings of
Fact.
The assertion that minimums were changed on a regular basis is not supported by the
record. (R Exh. 1.) While they were established on a regular basis when new classes were 20
proposed, they were changed only occasionally when some change in the class was proposed.
The 2010 “LART sweep” in the Liberal Arts Department is not comparable to the policy change
here. (R Exh. 6, Tr. 271, 272.)
The Respondent’s position that there was no significant change in policy is belied by 25
Simpson’s refusal to delay implementation of the policy as requested by the Union. Further, the
various emails between deans, chairs, and faculty (referenced above in the Findings of Fact)
indicate that those individuals considered this a significant change in policy, whether it had an
immediate effect on scheduled classes or not.
30
The fact that many classes were cancelled in the fall of 2012, despite having more than
the minimum number of students registered is not material. Nor is the fact that 64 classes ran
with fewer than the minimum number of students. (Tr. 303.) The fact remains that some
classes—at least Gorham’s—were affected by the change in course population minimums.
35
Moreover, as the Acting General Counsel pointed out, a change in policy can constitute
an 8(a)(5) violation when only one employee is affected or when the amount of money involved
is relatively small. See, e.g., Kentucky Fried Chicken, 341 NLRB 69, 84 (2004);
Bonnell/Tredegar Industries, Inc., 313 NLRB 789, 790 fn. 5 (1994). Based on this record, one
part-time faculty member, Gorham, was adversely affected in the fall of 2012 by the change in 40
policy. There is no evidence that any part-time faculty member was affected in the spring of
2013. It remains to be seen whether any faculty members are affected in the fall of 2013 or
thereafter.

30 Respondent made much of the difference between low population or underpopulation and
minimum course populations. I understand the distinction and it does not affect the outcome of this case.
JD–64–13
22
The Respondent argues that the Union did not request bargaining over course population
minimums, since it made no information requests regarding minimum course populations; made
no proposals and requested no specific remedy or relief for any faculty members either before or
during the September 5 meeting; did not request any further meetings to discuss course 5
population minimums and took no further action to resolve the issue of course population
minimums. Given that Schultz’ email to Simpson demanding bargaining specifically references
the new course population minimums, this argument is rejected as specious. (GC Exh. 8.)
The Respondent argues that Berklee did not refuse to bargain but did in fact sit down to 10
bargain with the Union when requested, and that the Union failed to discuss the course
population minimum policy at the meeting. This is contrary to the evidence including Simpson’s
own testimony. Additionally, Schultz testified that he knew from experience that neither side
would bargain in the absence of their attorneys, and that testimony was uncontradicted. Since
Simpson indicated that the college’s attorney was not coming to the September 5 meeting, 15
Schultz saw no reason for the Union’s attorney to be present. (Tr. 97.) No bargaining occurred
at the September 5 meeting and the Union did not again request bargaining since Simpson had
refused to delay implementation and had already implemented the new course population
minimums (a fait accompli). (Tr. 108.)
20
I find that the Union was denied the opportunity to bargain over the effects of the policy
change. Since the policy had already been implemented and the Union had requested effects
bargaining, the Union was not obligated to continue to request bargaining, since this was a fait
accompli; the Union’s failure to again request bargaining did not constitute a waiver of the right
to bargain. Bohemian Club & UNITEHERE! Local 2, 351 NLRB 1065, 1067 (2007), citing Tri-25
Tech Services, 340 NLRB 894, 895, 903 (2003); Gulf States Mfg. v. NLRB, 704 F.2d 1390 (5th
Cir. 1983).
B. Did the Union Waive its Right to Bargain Either by Contract Language
or by its Conduct During Bargaining?30
The employer has the burden to show that the union “clearly intend[ed], express[ed], and
manifest[ed] a conscious relinquishment” of its right to bargain. United Cable Television Corp.,
296 NLRB 163, 167 (1989); Intermountain Rural Electric Assn., 305 NLRB 783, 786 (1991),
enfd. 984 F.2d 1562 (10th Cir. 1993); see also Regal Cinemas, Inc. v. NLRB, 317 F.3d 300, 314 35
(D.C. Cir. 2003). Waiver of a statutory bargaining right is not lightly inferred from contractual
language, and the employer asserting this waiver bears the burden of establishing that the union
has clearly and unmistakably relinquished that right. Ohio Power Co., 317 NLRB 135, 136
(1995), citing Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983); American Benefit
Corp., 354 NLRB 129 (2010); Provena St. Joseph Medical Center, 350 NLRB 808, 810–812 40
(2007); Hi-Tech Cable Corp., 309 NLRB 3, 4 (1992), enfd without op. 25 F.3d 1044 (5th Cir.
1994); Kingsbury, Inc., 355 NLRB 1195, 1206 (2010). Rather, there is a presumption that the
Union has not abandoned rights guaranteed by the Act. Pertec Computer, 284 NLRB 810, 817
(1987). The Board does not construe general management rights and integration clauses as
constituting clear, unequivocal, and unmistakable waivers of statutory rights. See Provena, 45
supra at 822; Ohio Power Co., supra at 136, citing Johnson-Bateman Co., 295 NLRB 180, 184–
185 (1989); Outboard Marine Corp., 307 NLRB 1333, 1338 (1992). Further, the Board has
JD–64–13
23
taken the position that the employer has an obligation to bargain over effects even though
language in the management rights clause constitutes a waiver of the union’s right to bargain
over the decision itself. Good Samaritan Hospital, supra.
The Respondent argues that the union waived any right to bargain over mid-term policy 5
changes by including the “Management Rights” and “Pre-Existing Rights, Privileges or
Benefits” (integration or “zipper”) clauses in the contract and by its conduct during bargaining.
However, I reject those arguments as not supported by established case law.
In this instance, while comprehensive, neither the management rights nor the integration 10
clause makes reference to course population minimums or the effects of management’s unilateral
decisions or to the Union’s rights to bargain over such effects. Instead, the clauses are general in
nature. Respondent contends that those clauses, read together, demonstrate that any subject not
specifically included in the contract is an intentional omission. However, the Board has held that
such broadly-worded zipper clauses cannot be used as a “sword” to justify a unilateral change 15
without bargaining. American Benefit Corp, supra at 18.
Waivers of statutory rights may be established through examination of the parties’
bargaining history, but only if the issue has been fully discussed and consciously explored during
negotiations and the Union has consciously yielded or clearly and unmistakably waived its 20
interest. Ohio Power Co., supra at 136, citing Johnson-Bateman Co., supra at 185. At trial, the
Respondent presented numerous past contract proposals and “talking points” in which the Union
purportedly had sought to include provisions covering such subjects as the right to engage in
mid-term negotiations, or cancellation of courses in order to show that the Union had waived
inclusion of such in the contract. However, the argument fails. First, it has not been established 25
that the parties in fact negotiated over any of those proposals as required to show they were
“fully discussed and consciously explored.” Second, some proposals pertained to changing
contract language but it is unclear what the original language was since those contracts were not
entered into evidence. And third, none of those proposals concerned setting minimum course
populations or bargaining about the effects of a change thereto.30
I find that the current collective-bargaining agreement does not contain an explicitly
stated, clear and unmistakable waiver of the Union’s right to engage in effects bargaining over
the change in the minimum course population policy. I further find that the parties’ bargaining
history does not establish that the Union waived its right to bargain over the change in that 35
policy. I therefore find that the Respondent has not met its burden of establishing that the Union
waived its right to engage in effects bargaining over this unilateral change in policy.
In summary, I find that the Respondent made a unilateral change that is material,
substantial, and significant and that the Union did not waive its statutory right to bargain over the 40
effects of that change. I conclude that the Respondent’s conduct violated Section 8(a)(5) and (1)
of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of Section 45
2(2), (6), and (7) of the Act.
JD–64–13
24
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By failing to afford the Union prior notice and an opportunity to bargain over the
effects of its decision to change the minimum course population policy in August 2012, the 5
Respondent has violated Section 8(a)(5) and (1) of the Act.
4. The above unfair labor practice affects commerce within the meaning of Section 2(6)
and (7) of the Act.
10
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.15
Make-whole relief is not appropriate in effects bargaining cases. See Fast Food
Merchandisers, Inc., 291 NLRB 897, 899–902 (1988). The standard remedy in effects
bargaining cases is a limited make-whole Transmarine remedy, as clarified in Melody Toyota.
Transmarine Navigation Corp., 170 NLRB 389 (1968); Melody Toyota, 325 NLRB 846 (1998); 20
Rochester Gas & Electric Corp., 355 NLRB 507, 508 (2010); Electrical Workers Local 36 v.
NLRB, 706 F.3d 73 (2d Cir. 2013), petition for cert. filed 81 U.S.L.W. 3566 (U.S. Mar. 28, 2013)
(No. 12-1178); Stevens International, 337 NLRB 143, 144 (2001). A Transmarine remedy
requires an employer to bargain over the effects of its decision and to provide employees with
limited backpay from 5 days after the date of the decision until the occurrence of one of four 25
specified conditions. See Transmarine, supra at 390.
The purpose of accompanying the order to bargain with a limited backpay remedy is two-
fold: it is “designed both to make whole the employees for losses suffered as a result of the
violation and to recreate, in some practicable manner, a situation in which the parties’ bargaining 30
position is not entirely devoid of economic consequences for the Respondent.” Transmarine,
supra at 390. Making employees whole is the lesser consideration of the two. “Secondly, and
more importantly, the Transmarine and other similar 8(a)(5) remedies are designed to restore at
least some economic inducement for an employer to bargain as the law requires.” O.L. Willis,
Inc., 278 NLRB 203, 205 (1986). This recognizes that, in these cases, the employees represented 35
by the Union have already been affected, and the urgency of the situation triggering the
bargaining obligation has passed.
Effects bargaining cases typically involve an employer’s failure to bargain over the
effects of closing a facility, mass layoffs, or otherwise removing bargaining unit work. 40
However, a Transmarine-type remedy may be ordered when a unilateral change does not result
in a loss of jobs but otherwise causes economic losses to unit employees. Thus, in Rochester
Gas & Electric, above, the Board found appropriate a Transmarine-type remedy where the
employer had made a unilateral change in the vehicle benefit that it afforded employees,
resulting in increased commuting costs. Likewise, in Good Samaritan Hospital, above, a 45
Transmarine-type remedy was appropriate where the employer modified the number of
JD–64–13
25
employees assigned to work on a given shift. In Santa Cruz Convalescent Hospital, 300 NLRB
1040, 1041–1042 (1990), the employer failed to notify and bargain with the union over the
effects of its decision to transfer ownership of its hospital.
Here, the Respondent violated its obligation to provide the Union with prior notice and an 5
opportunity to engage in timely bargaining about the effects of its decision to increase the
minimum course populations, potentially affecting the income of certain employees in the
bargaining unit (the part-time faculty). The Respondent’s unfair labor practice thus deprived the
Union of “an opportunity to bargain . . . at a time . . . when such bargaining would have been
meaningful in easing the hardship on employees” whose income was being cut. Transmarine, 10
supra at 389. Had the Respondent engaged in timely effects bargaining, the Union may have
been able to secure additional benefits for affected employees. See Live Oak Skilled Care &
Manor, 300 NLRB 1040, 1042 (1990) (“[I]t is reasonable to require that ‘the employees whose
statutory rights were invaded by reason of the Respondent’s unlawful . . . action, and who may
have suffered losses in consequences thereof, be reimbursed for such losses until such time as the 15
Respondent remedies its violation by doing what it should have done in the first place’”). It
would be pure speculation to try to ascertain the result that timely effects bargaining would have
produced. Further, in Transmarine, the Board recognized that, in these circumstances, merely
ordering the Respondent to engage in effects bargaining would be a pro forma remedy. Because
the Respondent has implemented the policy change and thus relieved whatever pressures 20
motivated it to do so, “meaningful bargaining cannot be assured without restoring some measure
of bargaining power to the Union in relation to the issue.” Rochester Gas, supra at 508.
Therefore, I will order that Respondent bargain with the Berklee Faculty Union, on
request, over the effects of its decision to change the course population minimum policy.25
Further, I will order a limited backpay remedy designed to make any affected bargaining
unit members whole for any losses they suffered as a result of Respondent’s failure to bargain
about the effects of its decision to increase the course population minimums. Specifically, for
each affected bargaining unit member, Respondent shall pay backpay at the rate of their normal 30
wages from 5 days after the date of this Decision and Order until the occurrence of the earliest of
the following conditions: (1) Respondent bargains to agreement with the Union about the effects
of the change to the minimum course population policy; (2) the parties reach a bona fide impasse
in bargaining; (3) the Union fails to request bargaining within 5 business days after receipt of this
Decision and Order, or to commence negotiations within 5 days after receipt of Respondent’s 35
notice of its desire to bargain with the Union; or (4) the Union subsequently fails to bargain in
good faith. However, in no event shall this sum be less than the affected employees would have
earned for a 2-week period at the rate of their normal wages. See Smurfit-Stone Contractor
Enterprises, 357 NLRB No. 144, slip op. at 5–6 (2011) (citing Transmarine Navigation Corp.,
supra).40
Backpay shall be based on the earnings that the affected employees would normally have
received during the applicable period, and shall be computed in accordance with Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate
prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as 45
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). The Respondent shall
file a report with the Social Security Administration allocating backpay to the appropriate
JD–64–13
26
calendar quarters. Respondent shall also compensate the affected employees for any adverse tax
consequences of receiving lump-sum backpay awards covering more than 1 calendar year.
Latino Express, Inc., 359 NLRB No. 44 (2012).
On these findings of fact and conclusions of law and on the entire record, I issue the 5
following recommended31
ORDER
Respondent, Berklee College of Music, located in Boston, Massachusetts, its officers,10
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to timely notify the Berklee Faculty Union and afford it an opportunity to 15
bargain over the effects of the new course population minimum policy beginning in August
2012; and
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed them by Section 7 of the Act.20
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) On request, bargain collectively with the Union concerning the effects of the increase
in course population minimums and, if an understanding is reached, embody the understanding 25
in a signed agreement.
(b) Make whole its employees for any losses they may have suffered as a consequence of
the Respondent’s refusal to bargain over the effects of its decision to increase course population
minimums, as set forth in the remedy section of this decision.30
(c) Preserve and within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in 35
electronic form, necessary to analyze the amount of money due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its facility in Boston,
Massachusetts, copies of the attached notice. Copies of the notice, on forms provided by the
Regional Director for Region 1, after being signed by the Respondent’s authorized 40
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,

31 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–64–13
27
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since
about August 15, 2012.5
(e) Within 21 days after service by the Respondent, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
10
Dated: Washington, D.C. September 20, 2013
15
__________________________
Susan A. Flynn
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT make changes in your wages, hours, or working conditions without first
notifying and bargaining with the Berklee Faculty Union, American Federation of Teachers, Local
4412, AFT-MA, AFL–CIO (the Union), as the sole and exclusive bargaining representative of our
employees covered by the 2010–2013 collective-bargaining agreement between the Union and
Berklee College of Music, over the effects of such changes.
WE WILL NOT refuse to bargain in good faith with the Union over the effects of our increase in
course population minimums on bargaining unit employees.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act.
WE WILL bargain with the Union over the effects of our decision to increase course population
minimums.
WE WILL make all affected bargaining unit employees whole as set forth in Transmarine
Navigation Corp., 170 NLRB 389 (1968).
BERKLEE COLLEGE OF MUSIC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. Hearing impaired persons
may contact the Agency’s TTY service at 1-866-315-NLRB.You may also obtain information from
the Board’s website: www.nlrb.gov.
10 Causeway Street, 6th Floor, Boston, MA 02222–1072
(617) 565-6700, Hours of Operation: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED WITH
ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE COMPLIANCE OFFICER, (617) 565-6701.