Columbia College Chicago

National Labor Relations Board - Administrative Judge Opinions

Mar 15, 2013

13-CA-073486 (N.L.R.B. Mar. 15, 2013)

JD–13–13
Chicago, IL

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

COLUMBIA COLLEGE CHICAGO

Cases 13–CA–073486
13–CA–073487
and 13–CA–076794
13–CA–078080
13–CA–081162
13–CA–084369

PART-TIME FACULTY ASSOCIATION AT COLUMBIA
COLLEGE CHICAGO – IEA/NEA

Daniel Murphy, Esq.
for the Acting General Counsel.
Lisa McGarrity and Abizer Zanzi, Esqs.
for the Respondent.
Laurie Burgess, Esq.
for the Charging Party.

DECISION

STATEMENT OF THE CASE

GEOFFREY CARTER, Administrative Law Judge. This case was tried in Chicago,
Illinois on October 22–26 and November 27–28, 2012. The Part-Time Faculty Association at
Columbia College Chicago (PFAC) filed the charges in this matter on the following dates:

Case 13–CA–073486: Charge filed on January 30, 2012, and amended on February 10,
2012;
Case 13–CA–073487: Charge filed on January 30, 2012;
Case 13–CA–076794: Charge filed on March 16, 2012, and amended on April 26, 2012;
Case 13–CA–078080: Charge filed on April 4, 2012;
Case 13–CA–081162: Charge filed on May 16, 2012; and
Case 13–CA–084369: Charge filed on July 3, 2012, and amended on August 6, 2012.

The Acting General Counsel issued a complaint covering Case 13–CA–073486 on April 17,
2012, and subsequently issued consolidated complaints on April 17 (adding Case 13–CA–
073487), June 29 (adding Case 13–CA–076794),1 July 31 (adding Cases 13–CA–078080 and

1
The June 29 consolidated complaint was amended on July 10, 2012.
JD–12–13
2

13–CA–081162) and August 28, 2012 (adding Case 13–CA–084369).2

The consolidated complaint alleges that Respondent Columbia College Chicago
(Respondent or the College) violated Section 8(a)(1) of the National Labor Relations Act (the
Act) by maintaining an unlawful Network and Computer Use Policy, and by selectively and 5
disparately applying that policy only against employees who voice their support for unions.

The consolidated complaint also alleges that Respondent violated Section 8(a)(3), (4) and
(1) of the Act by: failing and refusing to assign classes to PFAC President and part-time faculty
member Diana Vallera for the summer 2012 semester; failing and refusing to assign more than 10
one class section to Vallera for the fall 2012 semester; beginning an investigation of Vallera in
April or May 2012 for alleged misconduct in April or May 2012; and issuing a notice of
“Complaint of Misconduct” to Vallera on or about May 14, 2012.

Further, the consolidated complaint alleges that Respondent violated Section 8(a)(5) and 15
(1) of the Act by: failing and refusing to provide PFAC with information that PFAC requested in
separate requests dated December 20, 2011, May 13, and May 17, 2012; failing and refusing,
since February 21, 2012, to bargain collectively about the impact and effects of Respondent’s
decision to reduce the number of credit hours awarded for certain courses; failing and refusing,
since May 8, 2012, to bargain collectively about the impact and effects of Respondent’s 20
implementation of its prioritization plan to restructure operations; failing and refusing, since
February 16, 2012, to meet and bargain with PFAC to negotiate a successor collective-
bargaining agreement; and failing and refusing, by its overall conduct, to bargain in good faith
with PFAC as the exclusive collective-bargaining representative of the bargaining unit.
25
And, the consolidated complaint alleges that Respondent violated Section 8(a)(5) and (1)
and failed to bargain collectively and in good faith with PFAC within the meaning of Section
8(d) of the Act by, on or about March 23, 2012: unilaterally changing the scope of the bargaining
unit by only applying the terms of the collective bargaining agreement to individuals currently
teaching a course; and repudiating the grievance procedure contained in the parties’ collective-30
bargaining agreement.

Respondent filed a timely answer denying each allegation in the consolidated complaint.
On the entire record,3 including my observation of the demeanor of the witnesses, and after

2
On September 7, 2012, the Respondent filed a motion for a bill of particulars. In an order dated
September 14, 2012, Deputy Chief Administrative Law Judge Arthur Amchan granted the motion in part,
and directed the Acting General Counsel to identify the agents of Respondent to whom PFAC requested
bargaining about the impact and effects of Respondent’s implementation of its decision to reduce course
credit hours in several departments. The allegation that Judge Amchan addressed in his order first
appeared in the consolidated complaint that the Acting General Counsel filed on April 27, 2012. (See GC
Exh. 1(o), par.VI(a).)
On September 21, 2012, the Acting General Counsel complied with Judge Amchan’s order and filed
an amendment to paragraph IX(a) of the August 28, 2012 consolidated complaint. The amendment
specified that Dr. Louise Love was the agent who received the requests to bargain about course credit
hours. No new complaint allegations were added.
3
I note that although I have included several citations to the record to highlight particular testimony
or exhibits, I emphasize that my findings and conclusions are not based solely on those specific record
JD–12–13
3

considering the briefs filed by the Acting General Counsel, the Charging Party and the
Respondent, I make the following

FINDINGS OF FACT
5
I. JURISDICTION

The Respondent, a not-for-profit corporation, operates a private college at its facility in
Chicago, Illinois, where it annually derives gross revenues available for operating expenses in
excess of $1 million, and purchases and receives goods and materials valued in excess of $5,000 10
directly from points outside of the State of Illinois. The Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act,
and that PFAC is a labor organization within the meaning of Section 2(5) of the Act.

II. ALLEGED UNFAIR LABOR PRACTICES – BACKGROUND FACTS 15

This case combines a mixture of distinct, but related allegations that arose from the
somewhat contentious relationship between Columbia College Chicago and PFAC (and PFAC
President Diana Vallera). Broadly speaking, the Acting General Counsel and PFAC allege that
Columbia College unlawfully: 20

(a) maintained an overbroad Network and Computer use policy, and disparately applied
that policy against employees who expressed support for unions;

(b) failed to bargain in good faith with PFAC as demonstrated by its overall conduct, and 25
specifically about a successor collective-bargaining agreement, and the effects of
changes that the college planned to make (or did, in fact, make) to the number of
credits awarded for certain courses and the overall organization of the college (under
the college’s prioritization plan);
30
(c) made unilateral changes to the scope of the bargaining unit and unilaterally
repudiated the grievance procedure set forth in the collective-bargaining agreement;

(d) discriminated against Vallera when it made class assignments for summer and fall
2012, and when it decided to investigate Vallera in May 2012 for alleged misconduct; 35
and

(e) failed and refused to respond to three information requests that PFAC submitted.

citations, but rather are based on my review and consideration of the entire record for this case.
I also make the following corrections to the record: (a) Respondent’s exhibit 83 was included in the
exhibit files in error, and erroneously indicates that the exhibit was identified and received into evidence,
but later withdrawn. The record shall reflect that Respondent’s exhibit 83 was identified, but was not
received, and subsequently was withdrawn (see Tr. 859–862, 871); and (b) Charging Party exhibit 5 was
rejected during trial (see Tr. 998–999), and thus should not have been included in the exhibit file.
JD–12–13
4

Since the allegations in the case are distinct, I only provide my background findings of fact in
this section. My specific findings of fact for each complaint allegation are set forth in Section IV
of this decision.

A. Columbia College Chicago - Overview 5

Columbia College Chicago is a private, independent college that specializes in arts,
communication and media. The college serves a total of 10,000–12,000 students in its
undergraduate and graduate programs, and offers courses during fall, spring and summer
semesters.4 (Tr. 452–453, 457.) 10

In terms of its organizational structure, Columbia College is divided up into the following
schools, each of which is headed by a dean: Fine and Performing Arts; Liberal Arts and
Sciences; and Media Arts. Each school is composed of departments that are headed by
department chairs, who in turn manage coordinators that lead various areas of concentration 15
within the department. The college has 23 departments overall, and employs approximately 360
full-time faculty members and 1,250 part-time faculty members. Part-time faculty members
teach approximately 75 percent of the courses offered at Columbia College. (Tr. 25–26, 453–
455, 645–646.)
20
B. PFAC – Overview

1. PFAC and the bargaining unit

Since 1998, PFAC has served as the exclusive collective-bargaining representative of the 25
following bargaining unit at the College:

[A]ll part-time faculty members who have completed teaching at least one semester at
Columbia College Chicago, excluding all other employees, full-time faculty, artists-in-
residence, and Columbia College Chicago graduate students, part-time faculty members 30
teaching only continuing education, music lessons to individual students or book and
paper making classes, Columbia College Chicago full-time staff members, teachers
employed by Erickson Institute, the YMCA or Adler Planetarium, and other individuals
not appearing on the Columbia College Chicago payroll, managers and confidential
employees, guards, and supervisors as defined in the Act. 35

(Respondent (R.) Exh. 1, p. 1.; see also GC Exh. 2(a) (Certification of Representative, dated
February 26, 1998).) The parties agree that the PFAC bargaining unit is an appropriate unit for
collective-bargaining within the meaning of Section 9(b) of the Act. (GC Exh. 1(ll), par. 7(a).)
During the relevant time period, the bargaining unit included approximately 1,200 part-time 40
faculty members. (Tr. 29–30, 770, 1179.)

PFAC and the College are parties to a collective-bargaining agreement that was intended
to be in effect from 2006 to 2010. (R. Exh. 1.) By the parties’ mutual agreement, the terms of

4
The college also offers classes during its winter break in January (the J term). (Tr. 453.)
JD–12–13
5

the 2006–2010 agreement have remained in effect while the parties have attempted to negotiate a
successor collective-bargaining agreement. (Tr. 33–34, 455, 1004.)

2. PFAC President Diana Vallera
5
In fall 2005, Diana Vallera began working for the College as a part-time faculty member
in the photography department. (Tr. 24–25.) At the time of her hire, Bob Thall was the
photography department chair, and Elizabeth Ernst was one of the coordinators in the
photography department. (Tr. 26.) Consistent with the College’s preference for hiring working
professionals, Vallera had a background in fine arts that included painting and mixed media 10
work, and also had commercial experience by virtue of her studies with Hedrich-Blessing, an
architectural and photography firm. (Tr. 243–244; GC Exh. 96.)

In 2008, Vallera became a steward for PFAC in the photography department. Vallera
later joined PFAC’s executive committee, and in 2010 became PFAC’s president. (Tr. 29.) 15

III. CREDIBILITY FINDINGS

A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or 20
admitted facts, inherent probabilities, and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003); see also Roosevelt Memorial Medical Center,
348 NLRB 1016, 1022 (2006) (noting that an administrative law judge may draw an adverse 25
inference from a party’s failure to call a witness who may reasonably be assumed to be favorably
disposed to a party, and who could reasonably be expected to corroborate its version of events,
particularly when the witness is the party’s agent). Credibility findings need not be all-or-
nothing propositions — indeed, nothing is more common in all kinds of judicial decisions than to
believe some, but not all, of a witness’ testimony. Daikichi Sushi, 335 NLRB at 622. 30

My credibility findings are stated in the findings of fact that are set forth in Section IV of
this decision. I note, however, that the witnesses that both the Acting General Counsel and the
Respondent presented were generally credible, save for some specific instances that I describe
more fully in the findings of fact below. Many of the probative facts were established by e-mail 35
communications and other documentation that, for the most part, were not disputed by any of the
parties.

IV. FINDINGS OF FACT, DISCUSSION AND ANALYSIS
40
A. Bargaining for a Successor Collective Bargaining Agreement

1. Complaint allegations

The complaint alleges that since on or about February 16, 2012, Respondent has failed 45
and refused to meet and bargain with PFAC (the exclusive collective-bargaining representative
JD–12–13
6

of the bargaining unit) regarding a successor collective-bargaining agreement. (GC Exh. 1(ff),
par. XI(c) (alleging violation of Section 8(a)(5) and (1)).)

2. Findings of fact
5
a. The College and PFAC begin negotiations for a
successor collective-bargaining agreement

As previously noted, PFAC and the College are parties to a collective-bargaining
agreement that was intended to be in effect from 2006 to August 31, 2010. (R. Exh. 1.) In 10
January 2010, PFAC and the College began negotiations for a successor collective-bargaining
agreement, with PFAC President Diana Vallera leading PFAC’s bargaining team, and Louise
Love leading the College’s bargaining team. (Tr. 36–37, 457–458.) By the parties’ mutual
consent, the terms of the 2006–2010 collective-bargaining agreement have remained in effect
while the parties have attempted to negotiate a successor contract. (Tr. 33–34, 455, 1004.) 15

Initially, the parties met every Friday for negotiations, unless a scheduling conflict
precluded their weekly meeting. Javier Ramirez from the Federal Mediation and Conciliation
Service served as the facilitator/mediator for negotiations. (Tr. 52, 458.) The parties were able
to reach a tentative agreement about contract language for academic freedom.5 (Tr. 460–461; see 20
also R. Exh. 1, Article V.) The College, however, was not willing to make tentative agreements
on any other parts of the contract, because it wished to retain the option to negotiate about the
contract as a whole once a working draft was established. (Tr. 461–462; R. Exh. 86, p.4; R. Exh.
87, p. 4.) Accordingly, to keep track of contract language or clauses where the parties were at or
near agreement (but where further negotiation might still occur), the parties kept a list of contract 25
items that were not in dispute (NIDs). (Tr. 59–61, 461–462; see also GC Exh. 9 (PFAC changed
from using tentative agreement on April 20, 2011, to using the term NID on April 22, 2011 on its
list of contract clauses where the parties had found common ground).)6

b. The College proposes that PFAC waive its right to effects bargaining 30

On October 27, 2010, the College sent PFAC a contract proposal that included a modified
management-rights clause. (GC Exh. 5, Article II.) The 2006–2010 contract included a
management-rights clause that, generally speaking, allowed the College to retain its right to
make decisions about its educational, fiscal and employment policies. Specifically, the existing 35
management-rights clause states as follows:

5
The academic freedom clause states as follows: “The College hereby reaffirms that all members of
the College faculty, regardless of their employment status, are entitled to academic freedom, as currently
defined in the Faculty Handbook or as may be revised from time to time in consultation with [PFAC].”
(R. Exh. 1, Article V.)
6
I do not credit Vallera’s testimony that the parties agreed that tentative agreements were the same
thing as NIDs. (See Tr. 1270.) The evidentiary record, including portions of PFAC’s bargaining notes,
establishes that the College repeatedly maintained that NIDs were different from tentative agreements in
that NIDs were more subject to future negotiation (particularly once the parties developed a working draft
of an entire contract).
JD–12–13
7

Columbia College Chicago and its Board of Trustees retain all their rights . . . inherent in
the management of the College . . . except as specifically modified by this Agreement
during its term. All the rights and responsibilities of [the College] shall be retained and
exercised in their sole discretion including by way of example and not in any way limited
to: 5

A. The right to plan, establish, terminate, modify and implement all aspects of
educational policies and practices, including curricula; admission and
graduation requirements and standards; . . . and the establishment, expansion,
subcontracting, reduction, modification . . . or transfer of any job, department, 10
program, course, institute or other academic or non-academic activity and the
staffing of the activity, except as may be modified by this Agreement.

B. The right to manage the College and direct the College’s property, including
fiscal and budgetary policy . . . except as may be modified by this Agreement. 15

C. The right to hire, direct, transfer, assign, terminate, lay off, discipline, appoint,
reappoint, and evaluate its employees and to establish, modify, and
discontinue rules and regulations of procedure, conduct, policies, standards,
and practices relating to the performance of work, including workload, 20
scheduling of work and its location and criteria and qualifications for
appointment, retention, and promotion of employees, except as may be
modified by this Agreement.

(R. Exh. 1, Article II (noting that the enumeration of management’s rights was not all-inclusive, 25
and did not exclude management rights not specifically listed).) The October 27 proposal
included a similar management-rights clause, but added language indicating that the
management-rights clause extended to the effects or impact of any management decisions that
the College might make in the designated areas.7 (Tr. 43–44, 148; GC Exh. 5, Article II.)
30
On October 29, 2010, the bargaining teams met for one of their regularly scheduled
sessions. At that session, Vallera expressed concern about the new management-rights clause
that the College proposed. Vallera explained that PFAC objected to the proposal because it
seemed regressive and sought a waiver of effects bargaining, and because the parties had just
settled (on October 22, 2010) a case in which PFAC alleged that the College failed and refused 35
to bargain with PFAC about the effects of changes that the College made to course credit hours
in the photography department. (Tr. 49; GC Exh. 4.) When Vallera asked why the College was
making such a proposal, general counsel Annice Kelly cited the parties’ dispute about course
credit hours that led to the settlement, and asserted that the College did not want to have a
dispute with effects bargaining arise in the future. PFAC did not agree to the College’s proposal; 40
the College, however, retained its management-rights clause proposal as negotiations proceeded.
(Tr. 49–50, 148–149; GC Exhs. 6(a), p. 1, 6(b), pp. 1-3; see also GC Exh. 8, Article II (March

7
The new language appeared in the first paragraph of the management rights clause, and stated: “All
the rights and responsibilities of [the College], including the effects or impact of their decision to exercise
such rights and responsibilities, shall be retained and exercised in their sole discretion . . .” (GC Exh. 5,
Article II (emphasis added).)
JD–12–13
8

30, 2011 proposal that included the same version of the management rights clause that the
College proposed in October 2010).)

c. Initial progress towards an agreement
5
Notwithstanding their disagreements on certain issues, from April to mid-September
2011, the parties were able to identify and set aside NIDs for several aspects of the contract. (Tr.
64; GC Exh. 9.) For example, as of June 9, 2011, the parties had identified NIDs for the
following areas: college/[PFAC] relationship (article IV of the contract); governance (article VI);
and grievance procedures (article XII). Similarly, as of September 23, 2011, the parties 10
determined that the policy statement regarding performance evaluations for PFAC members was
a NID.8 (GC Exh. 9.) At the September 23, 2011 bargaining session, however, Love reiterated
the College’s position that all NIDs would still be open for negotiation when the College
reviewed the proposed new collective-bargaining agreement as a whole. (R. Exh. 85.)
15
d. Summer 2011- changes to the bargaining process and the College’s bargaining team

With the arrival of late summer/early fall 2011 came certain changes to the bargaining
process. First, the parties switched from a traditional to a “small group” bargaining format. (Tr.
52–53, 364, 458–459.) With small group bargaining (a/k/a “sidebar” negotiations), the parties 20
sent only one or two representatives to bargaining sessions, instead of the entire bargaining team.
To facilitate open discussion and exchange of information, small group bargaining sessions did
not include attorneys or human resources office representatives. Discussions in the small group
sessions were viewed as off the record, and thus were not meant to be memorialized by any
bargaining notes. (Tr. 459–460, 1011–1012, 1181.) 25

Second, Love began phasing out her role as a member of the College’s bargaining team,
and Leonard Strazewski joined the College’s bargaining team in late summer 2011 to take
Love’s place. (Tr. 458, 479, 481, 1003–1004.) Since Strazewski was not familiar with status of
bargaining (or the term NID) when he joined the process, both he and Love served together on 30
the bargaining team for a while, and the College’s bargaining team jointly helped Strazewski get
up to speed. (Tr. 479, 1006, 1011, 1115–1116.) Strazewski was not briefed, however, on what
specific NIDs the parties identified before he joined the College’s bargaining team. (Tr. 1120.)

e. The College resubmits its March 30, 2011 contract proposal, and disputes arise about the 35
status and progress of negotiations

On September 30, the General Counsel issued the complaint in Case 30–CA–18888. (GC
Exh. 10(a).) Respondent received a copy of the complaint on October 6. (GC Exh. 10(b).) The
next day, on October 7, the College and PFAC met for a small group collective-bargaining 40
session. At that meeting, PFAC made a proposal regarding instructional continuity. In response,

8
Although it did not reach the status of being a NID, on July 22, 2011, the College presented a draft
proposal for contract language about instructional continuity. In general, the draft instructional continuity
language outlined special procedures that the College would follow to assist with ensuring that part-time
faculty members who have taught 51 or more credit hours at the College are assigned classes to teach in
the fall and spring semesters. (Tr. 112–113; GC Exh. 34.)
JD–12–13
9

Strazewski rejected the instructional continuity proposal in its entirety, and advised PFAC that
the College was resubmitting its March 30 contract proposal. When the mediator and Vallera
asked Strazewski whether he was aware of the various proposals (including NIDs) that the
parties had exchanged since March 30, Strazewski replied that he was not aware of that history,
and was simply following the instructions of the College’s office of general counsel to submit 5
the March 30 proposal. The meeting then ended, but not before Vallera questioned whether
Strazewski had sufficient authority to bargain on behalf of the College. (Tr. 66–69, 1016–1017.)

On October 21,9 Vallera sent an e-mail to Love to express PFAC’s concern that the
College was engaging in regressive bargaining.10 First, Vallera expressed concern about the 10
College’s decision to return to its March 30 contract proposal, noting that in doing so, the
College would eliminate a number of proposals that the parties discussed and/or agreed were not
in dispute. Second, Vallera questioned the timing of the College’s decision, which in her view
came “on the heels of the decision by the National Labor Relations Board to issue a complaint
against the College” in Case 30–CA–018888. In light of those concerns, Vallera asked Love to 15
clarify the College’s position as to the status of contract negotiations. (Tr. 75, 1016; GC Exh.
13.)

Love replied to Vallera’s e-mail on October 25. Instead of addressing Vallera’s concerns
directly, Love asserted that through her e-mail, Vallera broke the ground rules that the parties set 20
for small group (sidebar) negotiations. Specifically, Love stated:

It is unfortunate that once again you have decided to breach the guidelines that both sides
agreed upon when we entered into the “side bar” form of negotiations. You will recall
that both sides agreed that everything would be “off the record” and there would not be 25
any actual or threatened grievances or [unfair labor practices (ULPs)] filed as a result of
what was stated in the side bar. Your e-mail of October 21, 2011 violates both the spirit
of the side bar negotiations and the letter of it.

As a result, Columbia requires that P-Fac reaffirm its position that conversations that take 30
place in the side bar are off the record and will not be used as grounds for a ULP or
grievance. Without this confirmation from P-Fac, which Columbia views as necessary to
have any sort of trust that P-Fac can be taken at its word, Columbia will have to rethink
whether the side bar is the best format for it to negotiate.
35
(GC Exh. 14.)

The College and PFAC convened for bargaining on October 28, but sat in different rooms
so the mediator could speak with each party separately about whether they would continue with
small group bargaining (PFAC’s preference), or proceed using a different format (the College’s 40
preference). (Tr. 80, 1021; see also R. Exh. 51.) Once it became clear that the parties could not

9
The parties did not meet for bargaining on October 14 because Vallera had a scheduling conflict
and canceled the meeting. (GC Exh. 11.) The parties did meet for a small group bargaining session on
October 21, but Vallera was not present in the bargaining room when she sent her e-mail. (Tr. 1015–
1016.)
10
Vallera e-mailed Love because she still questioned Strazewski’s authority to bargain for the
College, and Love was Strazewski’s predecessor as the leader of the College’s bargaining team. (Tr. 75.)
JD–12–13
10

agree on a process to use for negotiations, the mediator notified the parties that he was
withdrawing because he was not adding anything to the process. (Tr. 80; R. Exh. 51.)

f. November 2011 – the College decides to suspend negotiations until it prepares and
submits a new contract proposal for PFAC to review 5

Because of some miscommunication and confusion between the parties about when they
would next meet for bargaining, the parties did not meet on November 4 (the customary Friday
morning meeting). (Tr. 81; GC Exhs. 16–17; R. Exh. 51.) However, the point became moot on
November 10, when the College decided that it wanted to prepare and submit a new contract 10
proposal for PFAC to review before the parties resumed face to face negotiations.11 As Love
explained to Vallera via e-mail:

Diana: Based on our small group discussions and as a way to move forward, the College
is preparing another comprehensive contract proposal. Until this proposal is ready and 15
you have reviewed it, we do not see the need to meet. We hope to have this proposal
completed by the middle of December and will forward to you and the P-Fac team. We
propose that your team then take time to review the proposal and get back to us sometime
in January.
20
(GC Exh. 18.) Vallera opposed the College’s plan to prepare a new contract proposal and
expressed PFAC’s preference to resume small group bargaining sessions, but Love responded
that the College would send PFAC a new contract proposal in December as planned. (GC Exhs.
19–20.)
25
g. December 2011 – the Colleges sends PFAC a new contract proposal

On December 19, the College sent PFAC its new contract proposal for review.12 In its
December contract proposal, the College deleted the “instructional continuity” language from the
contract, such that it would no longer be obligated to make an effort to find replacement class 30
assignments for certain experienced part-time faculty members whose usual classes were
canceled or dropped from the schedule. (Tr. 89–90, 1026–1027, 1126, 1157–1159; GC Exh.
21(b), Article VIII; compare R. Exh. 1, Article VII, Section 2 and GC Exh. 34 (July 2011
instructional continuity proposal prepared by the College.) The College also modified contract
language about disciplinary procedures to eliminate the requirement that disciplinary action be 35
based on “just cause,” and modified the language about the scope of the contract to state that the
contract constituted the entire agreement between PFAC and the College, such that the College
had no obligation to bargain about any matters (including any past practices) while the contract
was in effect. (GC Exh. 21(b), Articles X and XVI; compare R. Exh. 1, Articles X and XIV.)
40

11
Strazewski explained that he recommended that the College do a new contract proposal because
the March 30 proposal contained some ambiguous language that he believed was creating some problems
in understanding what was being negotiated. Strazewski also maintained that in the College’s view, it
would be beneficial for the parties to return to discussing specific, concrete proposals. (Tr. 1024–1025,
1060.)
12
Strazewski made recommendations about what language the December proposal should include,
but Annice Kelly ultimately drafted the proposal for the College. (Tr. 1121–1122.)
JD–12–13
11

Regarding the NIDs, the College stood firm on its rejection of virtually all NIDs unless
they were consistent with the College’s March 30 proposal. Specifically, the College handled
the NIDs as follows:

Existing (2006-2010)
Contract Section
NID Reached (date of
NID)
Incorporated in the College’s
December 2011 Contract
Proposal?
Article IV, Section 1 –
President – Association
Meetings
NID reached - accept
language in March 30
contract proposal (April 20,
2011)
Yes
Article IV, Section 2 – Bulletin
Boards/Website
NID reached - maintain
existing contract language
(April 22, 2011)
No. College returned to its
March 30 proposal, which was
limited to bulletin board access.
Article IV, Section 3(A) –
notification of full-time
positions
NID reached - accept
language in April 22
proposal (April 22, 2011)
No. College returned to its
March 30 proposal (with minor
language modifications).
Article IV, Section 3(B) –
application processing for full-
time positions
NID reached - accept
language in March 30
contract proposal (April 20,
2011)
Yes
Article IV, Sections 4, 5 & 7 –
office space, copy machine,
meeting space
NID reached - maintain
existing contract language,
which was identical to the
language in the March 30
contract proposal (April 20,
2011)
Yes
Article IV, Section 6 – campus
mail
NID reached (June 9, 2011) No. College returned to its
March 30 proposal.
Article IV, Section 8 –
personnel file
NID reached (June 9, 2011) No. College returned to its
March 30 proposal (with minor
language modifications).
Article IV, Section 9 –
evaluation
NID to move this section to
another part of the contract.
(April 20, 2011)

NID reached re:
performance evaluation
policy statement
(September 23, 2011)
No. The College retained the
evaluation section in the same
part of the contract, and
proposed new contract language
re: evaluations.

The College did not comment on
the status of the performance
evaluation policy statement.
Article IV, Section 10 –
bargaining unit eligibility list
NID reached - accept
language in March 30
contract proposal (April 20,
2011)
Yes.
Article IV, Section 12 – copy
of agreement
NID reached (June 9, 2011) No. Consistent with its March
30 proposal, the College deleted
JD–12–13
12

Existing (2006-2010)
Contract Section
NID Reached (date of
NID)
Incorporated in the College’s
December 2011 Contract
Proposal?
this clause.
Article VI, Section 1 –
department meetings
NID reached - remove
“directors” from meeting
list, but otherwise maintain
existing contract language
(April 20, 2011)
No. College returned to its
March 30 proposal.
Article VI, Section 2 – joint
meeting of full and part-time
faculty
NID reached re: meeting
procedure (April 20, 2011)
No. College returned to its
March 30 proposal (with minor
language modifications).
However, the NID was similar
in nature and content to the
March 30 proposal.
Article VI, Section 4-7 –
search committees for college
administration
NID reached - accept
language in March 30
contract proposal (April 20,
2011)
Yes, with minor language
modifications.
Article VI, Section 8 –
Payment for committee work
NID reached. Move to
Section 9. (April 20, 2011)
Yes, in Section 8. NID language
was similar to language in the
March 30 contract proposal.
Article VI (new sections) NIDs reached re: curricular
committee (to become
Section 8), Board of
Trustee faculty
representation and training
programs (see June 9,
2011)
Curricular committee – yes, in
Section 7. NID language was
similar to language in the March
30 contract proposal (Section 8).

Training programs – yes, in
Section 9. NID language was
similar to language in the March
30 contract proposal (Section
10).

Board of Trustee faculty
representation - no (clause
deleted).
Article IX, Section 2 –
grievance informal resolution
NID reached (May 6, 2011) No. College returned to its
March 30 proposal.
Article IX, Section 3 –
grievance step 2
NID reached – accept
language in March 30
proposal (May 6, 2011)
No. The College modified its
March 30 proposal to limit the
number of PFAC representatives
that may attend the step 2
grievance meeting.
Article IX, Section 4 –
grievance time limits
NID reached (May 2, 2011) Yes. NID language was
identical to language in the
March 30 proposal.
Article XII, Section 1 – NID reached (April 22, No. College returned to its
JD–12–13
13

Existing (2006-2010)
Contract Section
NID Reached (date of
NID)
Incorporated in the College’s
December 2011 Contract
Proposal?
contract administration 2011) March 30 proposal. (See
December 2011 proposal,
Article XIII, Section 1.)
Article XII, Section 4 – union
leave
NID reached - maintain
existing contract language,
but move to a different part
of the contract (April 20,
2011)
Yes. (See December 2011
Proposal, Article XIV, Section
4.)

(GC Exhs. 8–9, 21(b); R. Exh. 1.)

Last, the College modified the management-rights clause to strengthen the effects
bargaining waiver that it sought from PFAC. Specifically, the December 2011 proposal set forth 5
the following proposed management-rights clause:

Columbia College Chicago and its Board of Trustees (the “College”) retain the sole and
exclusive right to determine and manage the College’s operations, except as may be
limited by a specific, express provision of this Agreement. The College shall not be 10
required to bargain over matters of inherent managerial policy or other managerial rights,
including as set forth herein. Similarly, the College shall not be required to bargain over
the effects or impact of its decisions regarding such matters on unit members.
Managerial rights over which the College is not required to bargain include but are in no
way limited to: 15

A. The right to plan, establish, terminate, modify and implement all aspects of
educational policies and practices, including curricula; admission and
graduation requirements and standards; . . . and the establishment, expansion,
subcontracting, reduction, modification, alteration, combination, or transfer of 20
any job, department, program, course, institute or other academic or non-
academic activity and the staffing of the activity, except as may be modified
by this Agreement.

B. The right to manage the College and direct the College’s property, including 25
fiscal and budgetary policy and their implementation . . . except as may be
modified by this Agreement.

C. The right to hire, direct, transfer, assign, terminate, layoff, discipline, appoint,
reappoint, and evaluate its employees and to establish, modify, and 30
discontinue rules and regulations of procedure, conduct, policies, standards,
and practices relating to the performance of work, including workload,
scheduling of work and its location and criteria and qualifications for
appointment, retention, and promotion of employees, except as may be
expressly modified by this Agreement. 35

JD–12–13
14

This enumeration of managerial rights is not all-inclusive but rather illustrates the type of
matters which belong to and are inherent in management and shall not be deemed to
exclude managerial rights not specifically listed. This provision is intended to constitute
a clear and unmistakable waiver of any rights [PFAC] might otherwise have to bargain
over managerial rights and/or the effects or impact on unit members of the College’s 5
decisions with respect to such rights.

(GC Exh. 21(b), Article II (emphasis added).) The College invited PFAC to notify Strazewski
when it was ready to resume Friday morning negotiations. (Tr. 462–463; GC Exh. 21(a).)
10
h. February 2012 – the College declines PFAC’s requests for face to face negotiations until
PFAC responds to the College’s December 2011 contract proposal

On February 13, 2012, Vallera e-mailed Love to express concern that the parties had not
held a face to face bargaining session since October 2011, and to ask for dates that the College 15
would be available to resume face to face negotiations. Vallera asserted that PFAC intended to
pick up negotiations from where the parties stood in October 2011, and essentially disregard the
College’s December 2011 contract proposal because PFAC believed it to be regressive and in
violation of the law. (GC Exh. 24.)
20
On February 16, Strazewski replied to Vallera. Strazewski reminded Vallera that Love
was no longer part of the College’s bargaining team, and accordingly asked Vallera to direct
future communications about bargaining to him. Strazewski then asserted that PFAC’s own
actions led to the current bargaining process of exchanging proposals, and asked PFAC to either
provide the College with comments about the College’s December 2011 contract proposal, or 25
alternatively make a counterproposal. (GC Exh. 25.)

After Strazewski’s February 16 e-mail, the parties came to a stalemate, with PFAC
periodically asking the College to resume face to face bargaining sessions that picked up from
where the parties left off in October 2011, and with the College responding that bargaining was 30
taking place in writing, and that PFAC needed to respond to the College’s December 2011
contract proposal to move bargaining forward. (GC Exhs. 26–31; see also Tr. 1034, 1036, 1154
(explaining the College’s position that it was engaging in bargaining by presenting its December
2011 contract proposal to PFAC for review and response).) However, on April 24, PFAC
changed its position slightly when renewed its request that the College propose some dates to 35
meet for bargaining, but stated that it would respond to the College’s December 2011 proposal at
the requested face to face negotiation session. (Tr. 109; GC Exh. 32.)

i. June 2012 – the College agrees to resume face to face negotiations
40
On June 13, 2012, Strazewski contacted Vallera to schedule a bargaining session on a
variety of issues, including bargaining for a successor collective-bargaining agreement. (Tr.
1041; R. Exh. 61.) The parties thereafter resumed face to face negotiations, with the first session
after the standoff occurring on June 25, 2012. (R. Exh. 60.)
45

JD–12–13
15

3. Discussion and analysis

The Board has recognized that the obligation to meet for bargaining is of central
importance. As the Board has stated, the obligation to bargain “encompasses the affirmative
duty to make expeditious and prompt arrangements, within reason, for meeting and conferring. 5
Agreement is stifled at its source if opportunity is not accorded for discussion or so delayed as to
invite or prolong unrest or suspicion. It is not unreasonable to expect of a party to collective-
bargaining that he display a degree of diligence and promptness in arranging for collective-
bargaining sessions when they are requested, and in the elimination of obstacles thereto,
comparable to that which he would display in his other business affairs of importance.” J. H. 10
Rutter-Rex Mfg. Co., 86 NLRB 470, 506 (1949); see also Caribe Staple Co., 313 NLRB 877, 893
(1994) (noting that “considerations of personal convenience, including geographic or
professional conflicts, do not take the precedence over the statutory demand that the bargaining
process take place with expedition and regularity”). In light of the importance of the obligation
to meet for bargaining, the Board has held that a party that limits, delays or refuses meetings for 15
bargaining violates Section 8(a)(5) of the Act. Lancaster Nissan, 344 NLRB 225, 227 (2005),
enfd. 233 Fed. Appx. 100 (3d Cir. 2007).

In this case, the Acting General Counsel alleges that starting on February 16, 2012, the
College unlawfully refused to meet and bargain with PFAC about a successor collective-20
bargaining agreement. The relevant facts regarding that allegation are not in dispute. After
receiving and reviewing the College’s December 2011 contract proposal, PFAC contacted the
College on February 13, 2012 to schedule dates to resume face to face negotiations. In the same
communication, PFAC rejected the College’s December 2011 contract proposal as regressive
and unlawful, and asserted that the parties should pick up negotiations from where they stood in 25
October 2011. Instead of proposing dates for a face to face meeting as PFAC requested, on
February 16, 2012, the College set a precondition that PFAC either respond to its December
2011 contract proposal or make a counterproposal before the parties resumed face to face
negotiations.13 The College did not abandon its precondition until June 13, 2012. (FOF,
Sections h–i, supra) 30

The College’s decision to set a precondition for PFAC to satisfy before the College
would resume face to face negotiations was unlawful. Under Section 8(d) of the Act, employers
and unions alike have a mutual obligation to meet at reasonable times and confer in good faith
about mandatory subjects of bargaining such as wages, hours and terms and conditions of 35
employment. Riverside Cement Co., 305 NLRB 815, 818 (1991) (discussing Section 8(d)), enfd.
976 F.2d 731 (5
th
Cir. 1992). Since the parties’ negotiations for a successor collective-
bargaining agreement implicated a variety of mandatory subjects of bargaining, the College was
obligated to meet with PFAC at a reasonable time for contract negotiations without
preconditions. Id. at 818–819 (finding that it was unlawful for an employer to precondition 40
bargaining on the presence of a Federal mediator); see also Vanguard Fire & Security Systems,

13
I am not persuaded by the College’s argument that it was not setting a precondition to face to face
negotiations, but rather was attempting to negotiate with PFAC about how to resume negotiations. (See
R. Posttrial Br. at 57–58.) As explained in the findings of fact, the College was adamant that it would not
resume face to face negotiations until PFAC either responded to the College’s December 2011 contract
proposal or submitted a counterproposal. (FOF, Section g, supra.)
JD–12–13
16

345 NLRB 1016, 1017 (2005) (finding that it was unlawful for the employer to precondition
bargaining on the union providing a detailed proposal and agenda), enfd. 468 F.3d 952 (6
th
Cir.
2006); Beverly Farm Foundation, 323 NLRB 787, 793 (1997) (noting that an employer that
responds to a bargaining invitation by insisting on “negotiating by mail or demanding that a
union submit its proposals in writing has unlawfully refused to bargain”), enfd. 144 F.3d 1048 5
(7
th
Cir. 1998). The College failed to fulfill its obligation to meet and bargain with PFAC from
February 16 to June 13, 2012 (at a minimum),14 and I therefore find that the College violated
Section 8(a)(5) and (1) of the Act as alleged in paragraph XI(c) of the complaint.

B. Bargaining over the Impact and Effects of Course Credit Hour Changes 10

1. Complaint allegations

The complaint alleges that since on or about February 21, 2012, Respondent has failed
and refused to bargain with PFAC about the impact and effects of Respondent’s implementation 15
of its decision to reduce course credit hours in several departments. (GC Exh. 1(ff), par. IX(b)
(alleging violation of Section 8(a)(5) and (1).)

2. Findings of fact
20
a. Overview of course credit hours

Under the collective-bargaining agreement, part-time faculty members are paid wages for
each course that they teach, with the wage rate depending on the number of credit hours that the
course requires, and the total number of credit hours that the faculty member has taught at the 25
College (with more experienced faculty earning a higher wage). By way of example, in the
2009–2010 academic year, the College paid part-time faculty between $3,756 and $4,700 for
each three-credit hour course that they taught. The College pro-rates the pay rate per credit hour
if the faculty member teaches a course that is more, or less, than three credit hours. (R. Exh. 1,
Article XI.) 30

As part of its ongoing operations (including evaluating and updating its curricula), the
College occasionally changes the number of credits that it awards for particular courses. Course
credit hour changes occur to account for (among other possibilities): changes to the course
content; changes in, or a reassessment of, how the course is taught;15 and changes in the 35
curriculum for a particular department or major (e.g., to make room for a new course, a
department reduces time spent on other courses). (Tr. 540–541, 622; R. Exh. 10.)

14
The Acting General Counsel and PFAC allege that from June 2012, onward, the College continued
to violate Section 8(a)(5) of the Act by offering only limited time periods for bargaining. (See GC
Posttrial Br. at 18–19; PFAC Posttrial Br. at 35.) I need not rule on that theory since it will not materially
affect the remedy in this case.
15
The College has a formula that calculates credit hours based on the number of hours that the
professor spends with the students (contact hours), and the type of instruction that occurs during those
contact hours. Thus, for example, a lecture/discussion course receives one credit hour for each contact
hour per week, a studio course receives one credit hour for every 1.33 contact hours per week, and a
laboratory course receives one credit hour for every 2 contact hours per week. (R. Exh. 10.)
JD–12–13
17

b. Prior disagreements between PFAC and the College concerning course credit hours

Although changes to course credit hours and other curriculum changes (such as changes
to course prerequisites and the classification of a course as required or elective) can affect the
terms and conditions of employment of part-time faculty at the College,16 PFAC has been 5
inconsistent with requesting impact/effects bargaining for these types of changes. (Tr. 537–538,
592, 604–605, 655, 668.)

However, on October 22, 2010, the College and PFAC reached a settlement in Case 13–
CA–046171, in which the College agreed to meet and bargain with PFAC about the effects of 10
changes that the College made to the course credit hours for certain courses in the photography
department. (Tr. 40–41, 463; GC Exh. 4; see also GC Exh. 3 (unfair labor practice charge filed
on July 23, 2010). Consistent with the October 2010 settlement, the College and PFAC
bargained about the effects of course credit hour reductions in approximately 15 courses in the
photography department. (See, e.g., R. Exh. 4.) During those discussions, the College notified 15
PFAC that it planned to reduce the credit hours for the following two courses in the 2011–2012
academic year: Art Director/Commercial Photography (course 22–3500); and Art
Director/Copywriter Team (course 22–3525). (R. Exhs. 4–5.) At a bargaining session on March
4, 2011, PFAC promised to respond in writing to the information that the College provided about
changing the credit hours for those two courses, but ultimately did not pursue the matter further. 20
(R. Exh. 6.)

c. The school of fine and performing arts decides to change the number
of credit hours awarded for certain courses
25
In the same timeframe (starting in spring 2010), College administrators in the school of
fine and performing arts began implementing a strategic plan to evaluate that school’s
curriculum. (Tr. 576, 586.) As part of that process, departments reviewed their existing courses
to determine whether they were classified correctly (e.g., as a lecture/discussion, a studio, a
laboratory), and whether other modifications were warranted (such as updated course content, a 30
different course description, etc.).17 (Tr. 576–578, 599, 622–623, 651; R. Exh. 18; see also Tr.

16
Changes in course credit hours have a direct effect on PFAC members because the College uses
course credit hours to calculate the wages that it pays part-time faculty for the courses that they teach, and
because PFAC members earn higher wages as their total number of credit hours taught increases. (Tr. 39,
126–127, 537–538; R. Exh. 1.) Meanwhile, the example curriculum changes noted above (changes to
prerequisites and whether students are required to take a course) can have an effect on how many students
sign up for a particular course, and in turn reduce (or increase) course assignment opportunities for PFAC
members. (Tr. 591, 610–611.)
17
The school of fine and performing arts also asked its departments to review their degree
requirements to ensure that they were consistent with national standards and College policy. (Tr. 586–
588.) Through that review, which was completed by December 2010, some departments reduced their
credit hour requirements to conform to a national standard of 36 to 42 credits for a BA degree. (Tr. 587–
590; R. Exh. 17 (indicating, for example, that BA’s in Art History and Dance would each require 42
credits (down from 51 and 57 credits, respectively).) Although the reduction in course credits required
for certain majors could affect PFAC members (e.g., by changing a required course for a major to an
elective, which could reduce the number of students who enrolled in the course), PFAC did not ask the
College to bargain about this issue. (Tr. 591–592.)
JD–12–13
18

604, 607 (explaining that a change to an existing course could include a change to the number of
credit hours or to course pre-requisites, or more minor changes to the course description or
title).)

The school of fine and performing arts ultimately decided to reduce the credit hours for 5
the following 10 courses, with the changes to take effect in the 2011–2012 school year:
Accounting; Art Director/Commercial Photography; Art Director/Copywriter Team;
Screenwriting Workshop; Adaptation in LA; Acquiring Intellectual Property/LA; Theory,
Harmony & Analysis I; Theory, Harmony & Analysis II; Directing I; and Pro Survival & How to
Audition.18 (R. Exh. 11 (indicating that the school also increased the credit hours for 11 other 10
courses.) In various semesters since 2006, part-time faculty taught class sections for each of the
10 courses slated for reduced credit hours.19 (R. Exh. 12.)

In March 2011, the College posted its fall 2011 course offerings on OASIS (an online
course catalog) for students to review, including the courses that would count for a reduced 15
number of credit hours. (Tr. 562–563.) On May 2, 2011, the College notified part-time faculty
members of their fall 2011 class assignments, including several class assignments to the courses
that had reduced credit hours. (Tr. 578–584; R. Exhs. 13–15.)

d. PFAC asks the College to bargain over the effects of the changes to course credit hours 20

On December 20, 2011, Diana Vallera e-mailed Louise Love because she learned that
course credit hours may have been reduced in various departments. Vallera asked Love for a list
of all classes that had their credit hours reduced in the past 12 months, and requested that the
College bargain with PFAC over the impact and effects of its decision to reduce the credit hours 25
for certain courses. (GC Exh. 49.) On January 20, 2012, Love acknowledged receiving
Vallera’s e-mail, and advised Vallera that the College was preparing a reply. (GC Exh. 50.)

e. The arbitrator’s decision in employee R.P.’s grievance about teaching assignments
30
On February 12, 2012, an arbitrator issued an award in a grievance that part-time faculty
member R.P. filed against the College. R.P. claimed that the College violated the collective-
bargaining agreement when it did not assign R.P. a class to teach in the fall 2010 semester (R.P.
was initially assigned a class, but the College withdrew that assignment before the fall 2010
semester began). (GC Exh. 54.) After reviewing the collective-bargaining agreement, the 35
arbitrator found that the agreement “carefully established that an adjunct, or part-time, instructor
is employed only when he or she is teaching a course during a finite period of time. Between
teaching assignments the adjunct has no status as an employee. He or she is hired solely for the

18
For three of the ten affected courses in the school of fine and performing arts (Screenwriting
Workshop; Adaptation in LA; and Acquiring Intellectual Property), the reduction in credit hours (from
three to two credits) only applied to graduate students taking the courses. Undergraduates taking those
three courses continued to earn three credits, and the part-time faculty member continued to be paid for
teaching a three–credit course. (Tr. 572–575.)
19
Separately in March 2011, the school of media arts decided to reduce the credit hours (from three
credits to two credits) for the following two courses in the journalism department: Local Government
Politics Seminar; and State and National Government Politics Seminar. (Tr. 513–514, 528.)
JD–12–13
19

period of time during which the teaching occurs.”20 (GC Exh. 54, p. 10.) Accordingly, the
arbitrator ruled that the College did not violate the collective-bargaining agreement when it
withdrew R.P.’s teaching assignment, because R.P. was an applicant for employment and thus
“had no standing to question his future employment.” (GC Exh. 54, p. 12.)
5
f. The College responds to PFAC’s request for effects bargaining

On February 21, 2012, Associate Vice President for Academic Affairs Susan Marcus sent
Vallera a list of courses for which the College reduced the number of credit hours awarded. The
list included the 10 courses that the school of fine and performing arts modified after its 10
curriculum review, as well as 2 additional courses from the school of media arts (journalism
department). (GC Exh. 51; see also Tr. 513–515, 540–541 (explaining that the journalism
department reduced the course credit hours for two seminars on local, State and national
government to make room for a new course about digital journalism.)
15
That same day, Associate Provost for Faculty Affairs Leonard Strazewski notified
Vallera that although the College did not believe that it had an obligation to bargain with PFAC
about the issue of course credit hour reductions,21 the College was willing meet to discuss the

20 In support of his finding that part-time faculty members are employed only when they are teaching
a course during a finite period of time, the arbitrator cited the following provisions from the collective-
bargaining agreement (among others):

The final decision of who teaches each course is the sole prerogative of the department
Chairperson. (Article VII, Section 2);

The receipt and submission of a teaching availability form by a unit member does not obligate the
College in any way to provide an appointment or a particular assignment to that unit member. . . .
In addition, every form must include the following statement: “Submission of this form
constitutes a request, not a guarantee of teaching assignment. Further, since course enrollment, as
well as your qualifications and evaluations, determine teaching assignments, no assignment can
be considered final until student registration is completed. (Article VII, Section 4); and

The College may suspend, with or without pay, discharge, or take other appropriate disciplinary
action against a unit member for just cause. . . . For purposes of this Agreement, “discharge”
shall mean termination of employment during a semester and shall not refer to the failure to rehire
or to renew a faculty member’s appointment to teach for future semesters. This Article X shall
not apply to decisions by the College not to rehire or not to renew a unit member’s appointment
to teach future semesters. (Article X, Section 1).

(GC Exh. 54, pp. 2–3, 10–12.)
21
Strazewski’s assertion was consistent with the position that the College took when it submitted a
position statement to the Board on February 23, 2012, in response to an unfair labor practice charge that
PFAC filed in Case 13–CA–073487 to allege that the College refused to respond to its information
request or engage in effects bargaining about the College’s decision to reduce the credit hours that it
awarded for certain courses. (GC Exh. 53 (position statement); GC Exh. 1(c) (January 30, 2012 charge in
Case 13–CA–073487).) In its position statement, the College cited the arbitrator’s decision in R.P.’s
grievance to support its assertion that “effects bargaining is inappropriate because bargaining unit
members are not guaranteed continued employment and do not have standing under the contract to
JD–12–13
20

issue if PFAC first gave the College a proposal regarding the effects, and a list of PFAC
members that have been affected by the changes to course credit hours. (GC Exh. 52; see also
Tr. 1131.)

Vallera responded to Strazewski’s e-mail on March 23, 2012. Vallera renewed PFAC’s 5
request that the College bargain, but asserted that the bargaining should cover both the decision
to change course credit hours and the effects of that decision. (GC Exh. 30; compare GC Exh.
49 (requesting only effects bargaining).) Regarding Strazewski’s request that PFAC provide a
list of bargaining members who were affected by the changes to course credit hours, Vallera
responded that the College should have that information, and requested that the College send 10
PFAC a list of all part-time faculty members who had taught the courses with reduced credit
hours since spring 2011. (GC Exh. 30.)

On April 16, 2012, Strazewski wrote to Vallera to reiterate the College’s position that it
did not believe it had an obligation to bargain with PFAC about the changes to course credit 15
hours. Strazewski also renewed the College’s request that PFAC identify any bargaining unit
members who were affected by the credit hour changes, since the College’s view was that no
bargaining unit members were affected. In the College’s view, it could not “fulfill any
bargaining obligation unless and until the Union responds to Columbia’s information request by
specifying what it wants to bargain and who it believes was affected.” (GC Exh. 31 (also noting 20
that the College would respond to PFAC’s March 23, 2012 information request in the order that
it was received).)

On May 4, 2012, a breakthrough of sorts occurred when Strazewski notified PFAC that it
was willing to meet to discuss the reductions to course credit hours, notwithstanding the 25
College’s belief that no effects bargaining was required and the parties’ unresolved dispute about
who should identify the bargaining unit members affected by the changes. (R. Exh. 58.) PFAC
and the College accordingly participated in a bargaining session about the reductions to course
credit hours (and other issues) on June 25, 2012, and again on July 20, 2012. (R. Exhs. 60, 62.)
30
3. Discussion and analysis

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
has no obligation to bargain about the decision itself.” Allison Corp., 330 NLRB 1363, 1365 35
(2000) (citing First National Maintenance Corp. v. NLRB, 452 U.S. 666, 681–682 (1981)). As
part of its effects bargaining obligations, the employer has a duty to give pre-implementation
notice to the union to allow for meaningful effects bargaining. Allison Corp., 330 NLRB at
1366.
40
There is no dispute that by March 2011, the College had made a decision to reduce the
number of credit hours that it would award for 12 courses. Although the College was aware of
PFAC’s concerns about course credit hour reductions (having just settled a case in October 2010
about similar reductions in the photography department), it did not notify PFAC before it
implemented the March 2011 changes to course credit hours for 10 of the 12 courses. (FOF, 45

question any future reassignments of classes.” (GC Exh. 53, p. 5.)
JD–12–13
21

Sections b–c, supra (noting that the College did advise PFAC that it planned to reduce the credit
hours for Art Director/Commercial Photography, and Art Director/Copywriter Team.) When
Vallera asked the College in December 2011 to engage in effects bargaining, on February 21,
2012, the College agreed to bargain, but only on the precondition that PFAC first submit a
proposal regarding the effects, and a list of PFAC members that have been affected by the 5
changes to course credit hours. (FOF, Section f, supra.)

The College’s decision to set preconditions for PFAC to satisfy before the parties
engaged in effects bargaining was unlawful. Under Section 8(d) of the Act, employers and
unions alike have a mutual obligation to meet at reasonable times and confer in good faith about 10
mandatory subjects of bargaining such as wages, hours and terms and conditions of employment.
Riverside Cement Co., 305 NLRB at 818 (discussing Section 8(d)). Since the changes to course
credit hours affected the wages and terms and conditions of employment of PFAC members, the
changes were mandatory subjects of bargaining, and the College therefore was obligated to meet
with PFAC at a reasonable time for effects bargaining without preconditions.22 Id. at 818–819 15
(finding that it was unlawful for an employer to precondition bargaining on the presence of a
Federal mediator); see also Vanguard Fire & Security Systems, 345 NLRB at 1017 (finding that
it was unlawful for the employer to precondition bargaining on the union providing a detailed
proposal and agenda). To the extent that the College relented in May 2012 and agreed to
participate in effects bargaining, that change in position did not correct the prior unlawful refusal 20
to bargain because by that point, meaningful effects bargaining was precluded due to the
College’s failure to give PFAC pre-implementation notice of the credit hour changes, and due to
the delay caused by the unlawful preconditions that the College set before it agreed to engage in
effects bargaining.
25
The College offered multiple arguments for why its response to PFAC’s request for
effects bargaining was lawful, but only one of the College’s arguments has merit. As part of its
defense, the College maintains that PFAC waived its right to effects bargaining about the course
credit hour reductions because it did not request such bargaining after receiving notice of the
changes. In making that argument, the College asserts that PFAC should have requested 30
bargaining in spring 2011, when the College posted its fall 2011 course listings to its online
course catalog and notified PFAC members of their fall 2011 class assignments. See
Medicenter, Mid-South Hospital, 221 NLRB 670, 678 (1975) (explaining that once a union
receives adequate notice of a proposed change to the terms and conditions of employment, the
burden shifts to the union to pursue bargaining on the matter if it wishes to do so). 35

22
I also note that the arbitrator’s February 12, 2012 decision did not relieve the College of its
obligation to engage in effects bargaining with PFAC. The College has admitted that notwithstanding the
arbitrator’s decision, PFAC represents all members of the PFAC bargaining unit regardless of whether
they are currently teaching. GC Exh. 94(a), p. 3 (position statement); GC Exh. 94(b), p. 10 (same). The
College has contended, however, that the arbitrator’s decision establishes that PFAC waived its right in
the existing collective-bargaining agreement to bargain about the effects of academic changes slated for
future semesters. (GC Exh. 94(b), p. 10.)
I disagree. By its terms, the arbitrator’s decision at most addressed the right of individual
employees to contest teaching assignments through the grievance process. The arbitrator’s decision did
not address PFAC’s right to represent the interests of its members through effects bargaining.
JD–12–13
22

I find that the College’s defense has merit regarding the course credit hour reductions for
Art Director/Commercial Photography, and Art Director/Copywriter Team. For those two
courses, it is undisputed that the College notified PFAC in February 2011 that the credit hours
would be reduced. Since PFAC acknowledged receiving that notification, but then took no
further action, I agree that the College did not violate the Act when it refused to engage in effects 5
bargaining about the changes to those two courses when PFAC revisited the issue several months
later. By contrast, I do not find that PFAC received adequate notice (in spring 2011 or
otherwise) about the College’s plan to reduce credit hours for the remaining 10 courses at issue.23
The College did not notify PFAC directly about those changes, and the evidentiary record does
not show that the news of the changes made its way to PFAC by other means until months after 10
the changes took effect. See Medicenter, Mid-South Hospital, 221 NLRB at 678 (collecting
cases that stand for the proposition that if a union receives adequate notice of an employer’s
intentions when there remains sufficient opportunity to bargain, the employer cannot be faulted
for failing to provide formal notification). PFAC therefore cannot be faulted for the time that
passed before it learned of the credit hour changes and asked the College to engage in effects 15
bargaining.24

23
Those 10 courses are: Accounting; Screenwriting Workshop; Adaptation in LA; Acquiring
Intellectual Property/LA; Theory, Harmony & Analysis I; Theory, Harmony & Analysis II; Directing I;
Pro Survival & How to Audition; Local Government Politics Seminar; and State and National
Government Politics Seminar.

24
The College missed the mark with the remaining arguments that it raised about whether it
violated the Act by failing to engage in effects bargaining about the course credit hour reductions. First,
the College argued that it did not need to engage in effects bargaining because the changes to course
credit hours were not material, substantial and significant. While it is true that the Board has accepted
such a defense in the past where the disputed changes to working conditions are essentially de
minimis (see, e.g., Berkshire Nursing Home, LLC, 345 NLRB 220, 221 (2005)), that defense
does not apply here because the changes to course credit hours are material, substantial and
significant insofar as course credit hours are used to calculate the wages that PFAC members are
paid for the classes that they teach. (FOF, Section a, supra.)
Second, the College argues that the arbitrator’s decision in employee R.P.’s grievance
established that PFAC members do not have the right to future course assignments, or (by
extension) the right to expect that particular courses will carry a certain number of credit hours. I
disagree. As a preliminary matter, the College has admitted that notwithstanding the arbitrator’s
decision, PFAC represents all members of the PFAC bargaining unit regardless of whether they
are currently teaching. (GC Exh. 94(a), p. 3 (position statement); GC Exh. 94(b), p. 10 (same).)
Perhaps more important, by its terms, the arbitrator’s decision at most addressed the right of
individual employees to contest teaching assignments through the grievance process. The
arbitrator’s decision did not address or limit PFAC’s right to bargain on behalf of its members
over the effects of decisions that implicate working conditions.
Third, the College maintained that PFAC waived its right to request effects bargaining
about the changes to course credit hours because the College had a past practice of making
similar changes without any objection from PFAC. The College is correct that PFAC did not
consistently request bargaining when the College made changes to its curriculum (including
some significant curriculum changes, such as the College’s decision to lower the number of
credits required for majors in the school of fine and performing arts). However, whatever
PFAC’s practices might have been regarding curriculum changes, the record is clear that when it
JD–12–13
23

Based on the foregoing analysis, I find that the College violated Section 8(a)(5) and (1) of
the Act by failing and refusing to bargain with PFAC about the impact and effects of College’s
implementation of course credit hour reductions for the following 10 courses: Accounting;
Screenwriting Workshop; Adaptation in LA; Acquiring Intellectual Property/LA; Theory, 5
Harmony & Analysis I; Theory, Harmony & Analysis II; Directing I; Pro Survival & How to
Audition; Local Government Politics Seminar; and State and National Government Politics
Seminar.25

came to course credit hour reductions (as here), PFAC expected and demanded effects
bargaining, as indicated by the Board charge and eventual 2010 settlement in Case 13–CA–
046171 regarding course credit hour changes in the photography department. (FOF, Section b,
supra.)
And fourth, the College asserted that PFAC waived its right to effects bargaining about
course credit hour changes in the existing collective-bargaining agreement. That waiver
argument falls short because the College’s own actions demonstrate that the existing collective-
bargaining agreement does not contain a clear and unmistakable waiver of PFAC’s right to engage in
effects bargaining. See Kingsbury, Inc., 355 NLRB 1195, 1206 (2010) (explaining that it is the
respondent’s burden to show that the contractual waiver is explicitly stated, clear and unmistakable); see
also Omaha World Herald, 357 NLRB No. 156, slip op. at 3 (2011) (endorsing the proposition that clear
and unmistakable evidence of a parties’ intent to waive a duty to bargain is gleaned from all of the
surrounding circumstances, including bargaining history, actual contract language and the completeness
of the collective-bargaining agreement). Indeed, when the College and PFAC settled Case 13–CA–
046171, the College agreed to bargain with PFAC about the effects of credit hour changes to courses in
the photography department. Further, in light of that settlement, the College immediately proposed that
PFAC waive its right to effects bargaining in the successor agreement. Those actions would not have
been necessary if the existing agreement had an effects bargaining waiver.
25
The College expressed the concern that an adverse ruling on this effects bargaining issue would
harm its ability to run its business and conduct its most basic functions. (R. Posttrial Br. at 48–49.) I do
not share the College’s stark view of the practical effects of my decision here, because as previously
noted, bargaining over mandatory subjects is required where the contemplated change is material,
substantial and significant. Moreover, the Board rejected a similar “practical effects” argument in Public
Service Co. of Oklahoma when it explained:

The need to notify, bargain and compromise with the Union in the face of the perceived need to
change because of contractual and statutory restrictions on the employer’s right to make unilateral
changes: all such limits may be characterized as a part of the inefficiencies of American industrial
relations, workplace regulation and general governmental restriction. For good or ill, however,
Congress in its wisdom has crafted the Act and, as interpreted by the Board under review by the
courts, it is the law of the land. The argued need for an employer to have the right to take
unlimited actions regarding the unit is not a sufficient basis under the Act for insisting on contract
proposals which essentially set aside the bargaining rights of a union representing an
employer’s employees.

334 NLRB 487, 498 (2001), enfd. 318 F.3d 1173 (10
th
Cir. 2003).

JD–12–13
24

C. Bargaining over the Impact and Effects of Prioritization

1. Complaint allegations

The complaint alleges that since on or about May 8, 2012, Respondent has failed and 5
refused to bargain with PFAC about the impact and effects of Respondent’s implementation of
its prioritization plan to restructure operations. (GC Exh. 1(ff), par. IX(d) (alleging violation of
Section 8(a)(5) and (1).)

2. Findings of fact 10

a. The prioritization process

In 2011, the College, with the assistance of a consultant group, engaged in a self-study of
its academic programs, support services and operating functions, with the goal of making 15
strategic decisions about how the College should use its resources (i.e.., should the College
invest more resources in a program? Less? The same?). The College referred to the self-study
as the prioritization process. (GC Exhs. 58(a)–(b); see also Tr. 131, 137–139, 141, 1071–1072.)

Early in the prioritization process, the College president appointed 12 faculty members 20
(from a pool of candidates that had been nominated) to serve on a committee (the Academic
Team) that would evaluate the College’s academic programs. (GC Exhs. 58(a)–(b).) The
College appointed new PFAC member B.O. to serve on the Academic Team, but did not consult
with PFAC before making that appointment. (Tr. 133–134.)
25
PFAC became concerned that it was not part of the dialogue at the College about the
prioritization process. (Tr. 134; see also GC Exh. 55.) In response, on November 4, 2011, Vice
President for Academic Affairs Louise Love sent an e-mail to campus personnel to assure PFAC
members “that the voice of part-time faculty is very much part of the prioritization process.”
Love cited B.O.’s placement on the Academic Team, and also cited part-time faculty hiring and 30
retention data as evidence of the College’s commitment to its part-time faculty. (GC Exh. 55.)

b. PFAC’s January 3, 2012 request for effects bargaining regarding changes
arising from the prioritization process
35
On January 3, 2012, Vallera e-mailed Love to assert that the College had an obligation to
bargain with PFAC about the impact and effects of any changes that the College planned to make
based on the prioritization process if those changes would affect the terms and conditions of
employment of part-time faculty members. Vallera maintained that such bargaining needed to
occur in a meaningful manner and at a meaningful time, and requested that a meeting for 40
bargaining be scheduled in early January 2012. Finally, Vallera asked the College to provide
PFAC with information about recommendations produced through the prioritization process, and
information about any written communication that the College was having with PFAC members
that involved the collective-bargaining agreement. (GC Exh. 56.)
45
Love responded to Vallera on January 9, 2012. Regarding PFAC’s information request,
Love encouraged Vallera to check the prioritization process homepage on the College’s faculty
JD–12–13
25

intranet, where the College would be posting prioritization recommendations. As for PFAC’s
request for bargaining, Love stated that effects bargaining would only be triggered if and when
the College made a decision to implement a recommendation affecting the terms and conditions
of employment of PFAC members. Love asserted that the College had not yet made any firm
decisions related to prioritization, but assured Vallera that the College was “committed to giving 5
proper notice, and upon request, engaging in effects bargaining” in the event that the College did
decide to implement recommendations affecting PFAC members. (GC Exh. 57; see also Tr.
136–137.)

c. PFAC’s March 14, 2012 request for effects bargaining regarding changes 10
arising from the prioritization process

On March 14, 2012, Vallera wrote to Love to renew PFAC’s request that the College
bargain with PFAC “over the decision and/or effects of any changes related to the prioritization
process.” (GC Exh. 59, p. 2.) Vallera reiterated PFAC’s position that effects bargaining needed 15
to occur in a meaningful manner and at a meaningful time, and pointed out that the prioritization
process already had produced several recommendations to restructure or eliminate programs and
make changes to curriculum and personnel. (GC Exh. 59, p. 3; see also GC Exh. 58(b) (noting
that prioritization team recommendations were due to the College president in February/March
2012); GC Exh. 58(c) (recommendations from the Office of the Provost/Academic Affairs, 20
including several recommendations to modify academic programs).) Since the recommended
program changes would likely affect the work assignments, job qualification requirements and
job availability for PFAC members, PFAC requested immediate decisional and effects
bargaining over the prioritization process because further delay could make it impossible to
engaged in meaningful negotiations. (GC Exh. 59, p. 4; see also Tr. 144–147.) 25

d. The College’s May 8, 2012 response to PFAC’s request for effects bargaining

On May 8, 2012, interim associate provost Leonard Strazewski responded to Vallera’s
request that the College bargain with PFAC about the prioritization process. Strazewski began 30
stating that the prioritization process had only produced recommendations for discussion, and
thus the College had not made any or implemented any final decisions. However, Strazewski
went on to assert that in any event, the College was not obligated to engage in decisional
bargaining about the prioritization process because the management-rights clause in the
collective-bargaining agreement gave the College sole discretion to establish, modify or 35
terminate all aspects of educational policies and practices. (GC Exh. 59, p. 1.)

Strazewski also maintained that the College did not need to engage in effects bargaining
concerning the prioritization process. In the College’s view, the arbitrator’s decision in
employee R.P.’s grievance established that PFAC did not have standing to bargain about the 40
potential effects that changes proposed through the prioritization process could have on work
assignments, job qualification requirements, and job availability for PFAC members. (See
Section B(2)(e), supra.) Strazewski also maintained that PFAC waived its right to bargain over
the impact and effects of those changes because the College had a history of using its sole
discretion to modify its curriculum and set job qualifications, and the collective-bargaining 45
agreement set forth procedures that the parties agreed to follow when a faculty member is no
longer qualified to teach a course that has been modified. Strazewski therefore explained that the
JD–12–13
26

College “does not believe that any form of bargaining would be appropriate in the event that it
chooses to move forward with its Prioritization recommendations.” (GC Exh. 59, pp. 1–2; see
also Tr. 1131.)

e. The College concludes the first phase of the prioritization process 5

On May 23, 2012, the College president posted his prioritization recommendations26
(titled “Focus 2016 – Blueprint for Action”) on the faculty intranet for review, and also for
comment at a community listening session scheduled for May 25. (GC Exhs. 60(a)–(b).) On
June 19, the College president posted his revised prioritization recommendations. (GC Exh. 61.) 10
On June 29, 2012, the College board of trustees announced that it reviewed the president’s
recommendations, and notified the college community that the senior vice president “will be
responsible for organizing a college-wide effort to carry out the ambitious multi-year program
outlined in the recommendations.” (GC Exh. 62.)
15
3. Discussion and analysis

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
has no obligation to bargain about the decision itself.” Allison Corp., 330 NLRB at 1365. As 20
part of its effects bargaining obligations, the employer has a duty to give pre-implementation
notice to the union to allow for meaningful effects bargaining. Allison Corp., 330 NLRB at
1366.

As described in the findings of fact, the College’s prioritization process was a significant 25
project that implicated all facets of the College’s programs and operations. Because of that fact,
it was certainly understandable that PFAC was interested in having an active role in the process,
and in advocating for the interests of its members as the prioritization process moved forward.

The College, as established by the record, chose not to involve PFAC in the prioritization 30
process beyond assuring PFAC that it was taking the concerns of PFAC members into account.
The College offered several reasons for its approach on May 8, 2012, when it rejected PFAC’s
request for effects bargaining about prioritization, but the reason that carries the day here is a
simple one: PFAC’s request for effects bargaining was premature. In 2011 and early 2012, the
prioritization process involved collecting data, evaluating programs, and developing 35
recommendations for how the College should allocate its resources in the future. The College
president “decided” what recommendations to forward to the board of trustees in June 2012, and
the board of trustees accepted those recommendations on June 29, 2012. When it made its
decision, the board of trustees notified the College community that the College’s senior vice
president would be responsible for “organizing a college-wide effort to carry out the ambitious 40
multi-year program outlined in the recommendations.” (FOF, Section f, supra.) June 29, 2012,
therefore, was the earliest date that the College actually made a decision to implement any
recommendations that arose from the prioritization process. Accordingly, PFAC’s January 3 and

26
In its prioritization paperwork, the College described the president’s report both as “decisions” and
as “recommendations.” (GC Exhs. 58(b), 60(a), 61.) There is no dispute, however, that the president’s
report needed to go to the board of trustees for approval. (GC Exhs. 58(b), 62.)
JD–12–13
27

March 14, 2012 requests for effects bargaining about prioritization were indeed premature, and
the College’s refusal to engage in effects bargaining on May 8, 2012 (several weeks before the
board of trustees approved the prioritization recommendations), did not violate the Act. I
therefore recommend that the allegation in paragraph IX(d) of the complaint be dismissed.27
5
D. Respondent’s Network and Computer Use Policy

1. Complaint allegations

The complaint alleges that since December 8, 2011, Respondent has maintained an 10
overbroad work rule (the Network and Computer Use Policy), thereby interfering with,
restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act.
(GC Exh. 1(ff), par V(a) (alleging a violation of Section 8(a)(1) of the Act).)

The complaint also alleges that on or about December 21, 2011 and January 5, 2012, 15
Respondent selectively and disparately applied its Network and Computer Use policy by
applying those rules only against employees who voice their support for unions. (GC Exh. 1(ff),
par. V(b) (alleging a violation of Section 8(a)(1) of the Act).)

2. Findings of fact 20

a. The College’s Network and Computer Use Policy

In connection with the information technology that it provides to faculty, staff and
students, the College maintains a Network and Computer Use Policy. The policy covers a wide 25
range of topics, including authorized use of the College’s information technology and network
resources, and licensing guidelines. (GC Exh. 72(a).) The Network and Computer Use Policy
states as follows regarding the rights and responsibilities of individuals who use the College’s
information technology and network:
30
The rights and responsibilities discussed in this document are designed to ensure fair
access for all users. College information technology is intended for the use of the
Columbia College community for teaching, learning and administrative college purposes.
Any use that is counter to these purposes or that interferes with such use by others is
unacceptable. Each person exercising the privilege of using Columbia College Chicago 35
information technology and network resources accepts certain implied obligations and
limitations (such as storage space, bandwidth, time limits, etc.). Members of the
Columbia College Community may not use information technology in ways that interfere
with or demean others or that consume excessive college resources.
40
(GC Exh. 72(a), Section 5.1 (emphasis added).)

b. November 2010 reprimand of employee O.V.

27
The parties did not fully litigate whether the College and PFAC engaged in effects bargaining
about prioritization after June 29, 2012. I therefore take no position on that issue.
JD–12–13
28

To understand the complaint allegation that the College selectively applied its Network
and Computer Use Policy, we must begin with a dispute that arose in 2010, about an e-mail sent
by an employee who supported United Staff of Columbia College (US of CC), a staff/employee
union established at the college. (Tr. 412.) On November 18, 2010, a group named “Staff for an
Open Shop” circulated a newsletter that was critical of some of US of CC’s activities. On 5
November 22, 2010, employee O.V. sent an e-mail response to the Staff for an Open Shop
newsletter to several employees at the college, but specifically addressed his remarks to
employee J.F. (an employee who had previously sent communications on behalf of Staff for an
Open Shop, but who denied circulating the newsletter in question). (GC Exh. 72(c); R. Exhs.
29–30; see also GC Exh. 105 (Nov. 25, 2010 e-mail sent by employee J.F. on behalf of Staff for 10
an Open Shop).) Employee O.V.’s e-mail stated:

Dear [employee J.F.]:

It must be a nice luxury to sit on the sidelines and criticize everything that is done. US of 15
CC, and myself personally, worked very hard to get the employees in the Science
Institute department their 90 day notice. It means a lot to these employees to get 90 more
days of pay, along with the chance to spend 12 paid days looking for another position.
The part time staff were very stressed out to find out that their job was eliminated, but the
90 day notice benefit that the US of CC has negotiated for all the bargaining unit 20
members, brought them a lot of relief, because this gave them the opportunity to focus on
a plan on how they are going to make a living after their notice comes to an end. This by
far is a great benefit since staff not part of the bargaining unit list have been let go by the
College without any notice in advance.
25
In your desire to be negative about everything that the [US of CC] has done, including
getting the administration to improve their pay offer from nothing, you are doing a
disservice to many dedicated Columbia employees who love their jobs but don’t want
management to have the only say in how this College treats its employees.
30
[Employee O.V.]

(GC Exh. 72(c).)

Upon receiving employee O.V.’s e-mail, employee J.F. contacted Vice President for 35
Human Resources Ellen Krutz to seek Respondent’s assistance in addressing employee O.V.’s e-
mail, which J.F. characterized as “personal defamation” and the “public ‘singling out’ of an
individual staff member.”28 (Tr. 671, 699; R. Exhs. 29–30.) Krutz agreed to investigate the
matter, and determined that employee O.V. violated Respondent’s Network and Computer Use
policy when he sent the e-mail to employee J.F.. Krutz reached her conclusion in part because 40
she determined that employee J.F. felt intimidated by the e-mail and reasonably feared that the

28
Through Steven Kapelke, its provost and senior vice president at the time, Respondent advised
the US of CC (including Bill Silver, who also works with PFAC as a union representative) that it also
believed that employee O.V.’s e-mail “did not meet the College’s policies and procedures,” and that the
e-mail should not have singled out employee J.F. as the person responsible for the Staff for an Open Shop
newsletter. (Tr. 415–416; GC Exh. 72(d).)
JD–12–13
29

US of CC would retaliate against her in some fashion. (Tr. 709–710, 713.) Accordingly, Krutz
met with employee O.V. and orally reprimanded him for violating the Network and Computer
Use policy. (Tr. 710–711, 722; GC Exh. 73, p. 2.) Union Representative Bill Silver (who works
with both PFAC and the US of CC) was aware that Krutz questioned employee O.V. about the e-
mail that he sent to J.F., and was aware that Krutz admonished O.V. for sending the e-mail. (Tr. 5
420 (stating that Silver was aware that the College “admonished” O.V., but was not aware that
the College “orally reprimanded” O.V. (a form a discipline, in Silver’s view).)

c. December 2011 - PFAC members disagree via e-mail about Vallera’s leadership
10
Over one year later, on December 8, 2011, employee J.M. circulated an e-mail to College
faculty and staff to voice his frustrations about PFAC’s leadership. Employee J.M. explained
that he was a PFAC member and was “definitely pro-union,” but asserted that PFAC’s leadership
did not have its members’ interests at heart. Specifically, employee J.M. asserted:
15
In my opinion, and it is wholly MY opinion, the adversarial rhetoric and accusations that
our leadership has been hurling at the administration over the last two years have been
counterproductive, and often, just plain incorrect! This “Us against them” atmosphere
has created unnecessary and unwarranted tension and animosity between colleagues and
within departments as a whole. These tactics are a waste of time. I can’t see that they 20
serve any purpose other than to drag out the contract negotiations. . . .

I think the blame for this nonsense has to be placed squarely at the feet of our current
president, Diana Vallera. I believe that she misrepresents the administration and
distorts/edits the numbers and other facts to make things sound abusive (e.g., “new hire” 25
numbers.) It’s my impression with regards to negotiations is that Diana is disruptive and
uncooperative. Why is our union president pursuing such a course of action, and not
trying to bring some constructive end to contract negotiations? I don’t know, but it looks
to me like we need new leadership.
30
One last thing: you’ll notice that I haven’t included any “proof” to support my opinions
and impressions. That’s because I don’t want you to take my word for it. I want each of
you to take a good hard look at what’s going on. I don’t think you’ll have to look too
deep to see the same things that I do. Thanks for your time and your ear.
35
Sincerely, [Employee J.M.]

(GC Exh. 71.) Employee J.M.’s e-mail prompted other PFAC members to send responsive e-
mails, with some PFAC members agreeing with J.M.’s concerns about PFAC’s leadership (see,
e.g., R. Exhs. 27–28; Tr. 684) and other PFAC members expressing support for Vallera and her 40
efforts as PFAC’s president (see, e.g., R. Exh. 79). One of the College’s department
coordinators (a supervisor within the meaning of the Act) forwarded employee J.M.’s e-mail to
other College personnel, and J.M.’s e-mail was also published in the December 12 issue of the
Columbia Chronicle, a student-run newspaper at the College. (Tr. 174, 316, 327–328; GC Exh.
71(a).) 45

JD–12–13
30

d. The College decides not to take action against PFAC members who criticized Vallera

On December 12, 2011, Bill Silver sent a letter to interim provost Louise Love to assert
that employee J.M. misused Respondent’s e-mail system when J.M. sent the e-mail criticizing
PFAC/Vallera, and to request that Respondent “take immediate action to prevent any further 5
misuse of the College’s email system for personal attacks and harassment against a fellow
campus employee.” Silver reminded Love that approximately one year earlier, Respondent
admonished employee O.V. for the remarks that he made in the November 22, 2010 e-mail to
employee J.F. about the US of CC, and asserted that employee J.M.’s e-mail about PFAC’s
leadership also violated Respondent’s Network and Computer Use Policy. (GC Exh. 73, pp. 3-5; 10
see also Tr. 441–442.)

Similarly, on December 14, 2011, PFAC’s steering committee wrote to Love and Krutz
to request that Respondent investigate whether employee J.M.’s e-mail violated Respondent’s
Network and Computer Use Policy and/or Respondent’s anti-harassment policy. The PFAC 15
steering committee also asserted that by not enforcing its policies, Respondent permitted other
employees to compound the problem by re-sending employee J.M.’s e-mail to others at the
College. (GC Exh. 73, pp. 6–7; see also Tr. 175, 395, 679–680; GC Exh. 72(b) (Respondent’s
Anti-Discrimination and Harassment policy).)
20
On December 21, 2011, Krutz responded to the letters from Silver and the PFAC steering
committee. (Tr. 680–681.) Krutz explained that in Respondent’s view, it did not need to
discipline employee J.M. or take any other action regarding J.M.’s December 8, 2011 e-mail
because “no reasonable person would find that [employee J.M.’s] email intimidated, harassed
and/or created a hostile work environment with regard to Union President Diana Vallera.” (GC 25
Exh. 73, p. 1.) In particular, Krutz asserted that employee J.M. did not violate Respondent’s
policies by exercising his Section 7 right to question the wisdom of PFAC’s leadership, nor did
he attempt to threaten or intimidate Vallera (in contrast to Krutz’s interpretation of employee
O.V.’s November 2010 e-mail to employee J.F.). (Id., p. 2; see also Tr. 682–683.) Vallera and
Silver contested Krutz’s analysis in an e-mail to Krutz dated January 2, 2012, but Krutz 30
responded on January 5 that she would stand by her earlier decision. (GC Exh. 73, pp. 1, 3.)

3. Discussion and analysis

As its initial salvo regarding the allegations in this section, the College contends that the 35
complaint allegations concerning the Network and Computer Use Policy must be dismissed
because they are not closely related to the underlying charge that PFAC filed with the Board in
Case 13–CA–076794. (R. Posttrial Br. at 73–75.) To decide whether complaint allegations are
closely related to the allegations in a timely filed charge, the Board evaluates whether the
complaint allegations are factually and legally related to the charge. Redd-I, Inc., 290 NLRB 40
1115, 1116 (1988).

In the charge for Case 13–CA–076794, PFAC alleged that “[s]ince in or about October
2011, the [College has violated the Act] . . . by encouraging Union members to attack and
undermine the current leadership of PFAC . . . , disparately enforcing its e-mail policy by 45
allowing employees to disparage Vallera and by permitting agents of the College to disseminate
the disparaging statements to other employees thereby placing management’s imprimatur on
JD–12–13
31

these statements.” (GC Exh. 1(m).) The complaint allegations regarding the College’s Network
and Computer Use Policy are closely related to the allegations in the underlying charge, because:
(a) both the charge and paragraph V(b) of the complaint assert that the College enforced its
policy in a disparate manner; and (b) the allegation that the policy itself is unlawful (paragraph
V(a) of the complaint) is factually and legally related to the charge insofar as the same Network 5
and Computer Use Policy is at issue, and the legal question of whether a work rule is unlawful
on its face is commonly linked to the question of whether an employer has applied or enforced a
work rule in an unlawful manner. (See Section a, infra (discussing the legal standard that applies
to allegations that a work rule violates Section 8(a)(1) of the Act).) I therefore find that the
complaint allegations about the College’s Network and Computer Use Policy are procedurally 10
valid, and I accordingly turn to the merits of those allegations.

a. Did the College violate Section 8(a)(1) of the Act by maintaining its
Network and Computer Use Policy?
15
The Board has articulated the following standard that specifically applies when it is
alleged that an employer’s work rule violates Section 8(a)(1):

If the rule explicitly restricts Section 7 activity, it is unlawful. If the rule does not
explicitly restrict Section 7 activity, it is nonetheless unlawful if (1) employees would 20
reasonably construe the language of the rule to prohibit Section 7 activity; (2) the rule
was promulgated in response to union activity; or (3) the rule has been applied to restrict
the exercise of Section 7 rights. In applying these principles, the Board refrains from
reading particular phrases in isolation, and it does not presume improper interference
with employee rights. 25

NLS Group, 352 NLRB 744, 745 (2008) (citing Lutheran Heritage Village-Livonia, 343 NLRB
646, 646–647 (2004)), adopted in 355 NLRB 1154 (2010), enfd. 645 F.3d 475 (1
st
Cir. 2011).
As with all alleged Section 8(a)(1) violations, the judge’s task is to “determine how a reasonable
employee would interpret the action or statement of her employer . . . , and such a determination 30
appropriately takes account of the surrounding circumstances.” The Roomstore, 357 NLRB No.
143, slip op. at 1 fn. 3 (2011).

In this case, the Acting General Counsel does not claim that the Network and Computer
Use Policy explicitly restricts Section 7 activity. Instead, the Acting General Counsel asserts that 35
the policy is overbroad, and thus includes language that employees could reasonably construe as
prohibiting Section 7 activity. Specifically, the Acting General Counsel takes issue with the
policy language that prohibits individuals from using the College’s information technology
system “in ways that interfere with or demean others,” because in the Acting General Counsel’s
view, that policy language could be interpreted as including protected Section 7 activity. (GC 40
Posttrial Br. at 48.)

The Board has issued two decisions that are instructive on the merits of the Acting
General Counsel’s challenge to the College’s policy. In Claremont Resort & Spa, the Board was
presented with a work rule that prohibited “negative conversations” about employees or 45
managers and warned employees that such conversations were in violation of the employer’s
standards of conduct and could result in disciplinary action. 344 NLRB 832, 832, 836 (2005).
JD–12–13
32

Applying the test set forth in Lutheran Heritage Village-Livonia, supra, the Board found that the
rule was unlawful because its “prohibition of ‘negative conversations’ about managers would
reasonably be construed by employees to bar them from discussing with their coworkers
complaints about their managers that affect working conditions, thereby causing employees to
refrain from engaging in protected activities.” Claremont Resort & Spa, 344 NLRB at 832; see 5
also Southern Maryland Hospital, 293 NLRB 1209, 1222 (1989) (finding that a rule that
prohibited “derogatory attacks” was unlawful because it could reasonably be construed as
prohibiting permissible union propaganda that placed the employer in a negative light), enfd. in
pertinent part, 916 F.2d 932 (4
th
Cir. 1990).
10
In Hyundai America Shipping Agency, the Board was presented with a number of work
rules that the Acting General Counsel challenged as unlawful. 357 NLRB No. 80, slip op. at 1
(2011). The Board agreed that the employer violated Section 8(a)(1) of the Act by maintaining
work rules that threatened employees with discipline if they disclosed information from their
personnel files, or if they complained to their coworkers instead of voicing complaints directly to 15
their supervisor or the human resources office. Id. However, the Board also held that it was
lawful for the employer to threaten employees with discipline for “indulging in harmful gossip.”
Id., slip op. at 2. As the Board explained, employees could not reasonably construe the harmful
gossip rule as prohibiting Section 7 activity because the rule was only directed at gossip, which
was commonly defined as chatty talk or rumors or reports of an intimate nature. Id. 20
(distinguishing the work rule at issue in Claremont, which referred to any negative conversations
about employees or managers, and thus implicitly extended to protected activity).

After considering the relevant legal authorities and the surrounding circumstances that
relate to the Network and Computer Use Policy, I agree with the Acting General Counsel that the 25
policy is unlawfully overbroad. Merriam-Webster’s Collegiate Dictionary (11
th
edition) defines
the term “demean” as “to lower in character, status or reputation.” Given that broad definition,
an employee could reasonably construe the College’s prohibition of communications that
demean others as including protected statements that fall short of being malicious, but
nonetheless lower the character, status or reputation of the College because the statements place 30
the College in a negative light. See Southern Maryland Hospital, 293 NLRB at 1222 (applying
this reasoning to a work rule that prohibited derogatory attacks); see also Central Security
Services, 315 NLRB 239, 243 (1994) (explaining that false and inaccurate employee statements
are protected under the Act unless they are knowingly false or otherwise are malicious). The
surrounding circumstances support my assessment, because the evidentiary record shows that 35
both the College and PFAC invoked the Network and Computer Use Policy to challenge a
permissible union (or anti-union) activity. (See FOF Sections b and d, supra (policy used to
challenge remarks made by O.V. and J.M.). Accordingly, I find that the College violated
Section 8(a)(1) of the Act by maintaining its overbroad Network and Computer Use Policy.
40
b. Did the College violate Section 8(a)(1) of the Act by selectively applying
its Network and Computer Use Policy only against employees who support unions?

The Acting General Counsel also maintains that the College disparately applied its
Network and Computer Use Policy by permitting employees to send anti-union e-mails in 45
December 2011, but reprimanding employee O.V. for sending a pro-union e-mail in November
2010. The Acting General Counsel contends that by applying its policies in this disparate
JD–12–13
33

manner, the College violated Section 8(a)(1) of the Act by engaging in conduct that has a
reasonable tendency to interfere with, restrain or coerce union or protected activities. KenMor
Electric Co., 355 NLRB 1024, 1027 (2010) (noting that the employer’s subjective motive for its
action is irrelevant); Yoshi’s Japanese Restaurant & Jazz House, 330 NLRB 1339, 1339 fn. 3
(2000) (same); see also Park N’ Fly, Inc., 349 NLRB 132, 140 (2007). 5

While I understand the Acting General Counsel’s theory, I find that it fails because it runs
afoul of Section 10(b) of the Act. Simply put, the Acting General Counsel does not really take
issue with the College’s decision not to intervene when PFAC members began exchanging e-
mails about Vallera’s leadership in December 2011. (See R. Exh. 90, p. 2 (letter from the Acting 10
General Counsel to PFAC, taking the position that employee J.M.’s e-mail about Vallera did not
violate the Act.) Instead, the Acting General Counsel takes issue with the fact that the College
reprimanded employee O.V. for arguably similar (but pro-union) conduct in November 2010.

Section 10(b) bars the Acting General Counsel from alleging in the complaint in this case 15
that the College violated the Act when it reprimanded employee O.V, and it also bars the Acting
General Counsel from litigating that issue indirectly by arguing, in effect, that the College’s
reprimand of employee O.V. continues to cast a chill on employees who engage in protected
activities.29 See NLRA, Section 10(b) (explaining that “no complaint shall issue based upon any
unfair labor practice occurring more than six months prior to the filing of the charge with the 20
Board”). Accordingly, I recommend that the allegation in paragraph V(b) of the complaint be
dismissed as untimely.

In the alternative, I recommend that the allegation in paragraph V(b) of the complaint be
dismissed on the merits. The evidentiary record shows that once PFAC members began debating 25
Vallera’s leadership in December 2011, the College allowed employees to circulate both pro and
anti-Vallera e-mails. (See FOF, section b.) Thus, at the time of the incident, the College
enforced its Network and Computer Use Policy in a neutral manner. To the extent that the
College may have enforced the policy differently in November 2010, I find that in light of the
facts presented in this case, the November 2010 incident was too remote from the events of 30
December 2011 to have a reasonable tendency to interfere with, restrain or coerce employees in
the exercise of their Section 7 rights.

E. Information Request about Respondent’s Early Feedback System
35
1. Complaint allegations

The complaint alleges that since on or about February 17, 2012, Respondent has failed
and refused to provide PFAC with information that PFAC requested on December 20, 2011,

29
I emphasize that my finding here does not implicate the ability of parties to present disparate
treatment evidence to prove discrimination. In a discrimination case, a party may use older incidents to
prove that the employer handled a recent (i.e., timely filed under 10(b)) event unlawfully.
The Acting General Counsel does not present such a theory here. Instead, the Acting General
Counsel generally agrees that the College properly handled the December 2011 e-mails about Vallera’s
leadership (which were timely presented in a charge filed with the Board), but then asserts that the
College nonetheless violated the Act based on how it handled employee O.V.’s e-mail communications in
November 2010 (an issue that is barred by 10(b)).
JD–12–13
34

concerning Respondent’s unilateral implementation of its Early Feedback System. (GC Exh.
1(ff), pars. VIII(a), (e) (alleging violation of Section 8(a)(5) and (1)).)

2. Findings of fact
5
a. The Early Feedback System - overview

In fall 2011, the College implemented a pilot “Instructor Early Feedback System” to
monitor the performance of instructors in the College’s First Year Seminar classes. (Tr. 943–
945; GC Exh. 45.) The Early Feedback System consists of five steps (paraphrased from the 10
original):

1. Survey – in the fifth week of the semester, all First Year Seminar students are asked
to complete a survey about their classroom experience. In the survey, students are
asked to indicate whether they “strongly agree,” “agree,” “disagree” or “strongly 15
disagree” with the following statements:

a. My instructor effectively encourages all students to participate in class
activities and discussions.
b. My instructor’s assignments and directions are clear. 20
c. My instructor treats students fairly and respectfully.
d. My work is graded in a way that is clear and makes sense.
e. So far, the kind of work that we have been asked to do is worthwhile.
f. My instructor is available to talk outside of class.
g. Overall, my instructor is an effective teacher. 25

The survey also asked students to state what “has most shaped your perception of the
course and instructor,” and to provide any constructive feedback they would like to
share.
30
2. Analysis – First Year Seminar staff will review student survey results and use them to
help identify classes where student satisfaction seems low or there are other “red
flags.”

3. Discussion and Classroom visits – First Year Seminar staff members will contact any 35
instructors “whose survey results indicate a high level of dissatisfaction or other
potential problem” to discuss the survey results and their possible implications or
genesis. Staff members may also observe the class to determine whether some form
of mentoring is needed.
40
4. Mentoring - Instructors who could benefit from a greater level of guidance and
support will, in concert with First Year Seminar staff, devise a mentoring plan that
will be carried out during the remainder of the semester (e.g., face to face meetings,
more classroom visits or observations, or a review of instructional materials and class
plans). The mentoring plan will also state a means of determining whether the 45
mentoring was successful.

JD–12–13
35

5. Follow-up and further steps – First Year Seminar staff will determine the progress of
the mentoring plan. In most cases, the mentoring plan will produce a positive impact
on the instructor’s classroom performance and the students’ classroom experience. If
the mentoring plan does not produce positive results, however, “an official College
Part-Time Faculty Evaluation Report may be completed, indicating that the instructor 5
has not met expectations. . . . In most cases, [First Year Seminar] will not offer
future teaching assignments to such instructors.”30

(GC Exh. 45.)
10
b. PFAC requests information about the Early Feedback System

On October 19, 2011, PFAC President Diana Vallera received an e-mail from a PFAC
member who was notified by First Year Seminar staff that the five-week student surveys (from
step one of the Early Feedback System) raised some concerns. (Tr. 114–115; GC Exh. 42.) 15

After obtaining a written description of the Early Feedback System, on December 20,
2011, Vallera wrote a letter to interim provost Louise Love about the program. In her letter,
Vallera asked Respondent “to immediately cease and desist in the implementation of this
evaluation program, and to rescind any and all actions taken under this evaluation program,” 20
because Respondent implemented the Early Feedback System unilaterally and without any
discussion with PFAC. (Tr. 115, 955–956; GC Exh. 46.)

Vallera also asked Love to provide PFAC with the following information about the Early
Feedback System: 25

1. The names of any instructors who have been notified that there is dissatisfaction with
his/her work performance.
2. Any subsequent action(s) — disciplinary, remediation or otherwise — that has been
taken with those instructors identified in the above item # one. 30
3. A copy of all student surveys that have been compiled, with the names of the students
redacted.
4. Any other department affected by this new evaluation system.
5. The names of any members that were evaluated under this new Procedure.
35
(GC Exh. 46.) On January 20, 2012, Love acknowledged receiving Vallera’s December 20,
2011 e-mail, and advised that Respondent was in the process of preparing a reply. (GC Exh. 47.)

c. The College responds to PFAC’s information request about the Early Feedback System
40
On January 30, 2012, PFAC filed an unfair labor practice charge to assert that the
College failed to comply with Vallera’s/PFAC’s information request regarding the Early

30
Instructors who have taught at least 51 credit hours and have not met expectations for First Year
Seminar teaching will be offered an opportunity to remediate those deficiencies. Instructors may or may
not be offered a First Year Seminar section during the remediation semester. (GC Exh. 45.)
JD–12–13
36

Feedback System. (GC Exh. 1(a); see also GC Exh. 1(e) (amended charge filed on February 10,
2012).)

On February 17, 2012, Susan Marcus, associate vice president for Academic Affairs,
responded to Vallera’s December 20, 2011 e-mail to Love, since she (Marcus) was the College’s 5
liaison with PFAC. (Tr. 941; R. Exh. 43.) Marcus asserted that the Early Feedback System was
consistent with the terms of the existing collective bargaining agreement, including the
management-rights clause and the College’s evaluation policy (which Marcus maintained was
established in accordance with the collective-bargaining agreement). Therefore, Marcus advised
Vallera that the College would continue to use the Early Feedback System, and would not 10
rescind any actions taken under that program. (R. Exh. 43.)

Regarding PFAC’s request for information about the Early Feedback System, Marcus did
not provide any information in response to PFAC’s first two requests (for the names of
instructors who had been notified that there was dissatisfaction with their work performance, and 15
any actions taken regarding those instructors) because she determined that those requests were
“overbroad, unlimited in scope, vague, and ambiguous.”31 (R. Exh. 43, p. 2; Tr. 120.) Marcus
admitted during trial, however, that she had not seen or reviewed Respondent’s written
description of the Early Feedback System when she prepared her letter in response to PFAC’s
information request (she instead relied on a verbal description of the program that another 20
employee provided). (Tr. 964–967.) Marcus did provide the student surveys that PFAC
requested (request #3), and also provided brief responses to PFAC requests 4 and 5. (R. Exh. 43,
p. 2 (indicating that the First Year Seminar program implemented the Early Feedback System
independent of other departments, and stating that PFAC should refer to the student surveys
provided in response to request #3 for the names of the faculty members who were evaluated 25
under the program).) PFAC and the College did not correspond further about the College’s
responses to the information request. (Tr. 950.)

3. Discussion and analysis
30
An employer’s duty to bargain includes a general duty to provide information needed by
the bargaining representative in contract negotiations and administration. Generally, information
concerning wages, hours, and other terms and conditions of employment for unit employees is
presumptively relevant to the union’s role as exclusive collective-bargaining representative. By

31
Marcus testified that she believed items 1 and 2 of PFAC’s information request were
ambiguous because: the collective-bargaining agreement does not have any provisions regarding
notifying faculty about dissatisfaction; it was not clear what PFAC meant by notification of
dissatisfaction, since such notification could range from a comment made in casual conversation to a
more formal type of notification; and because PFAC did not specify a time frame for its request. (Tr.
946–949.)
I do not credit Marcus’ explanation because Vallera’s letter specifically referred to the Early
Feedback System, and Marcus demonstrated that she understood that fact when she provided PFAC with
the student surveys that the First Year Seminar program compiled under the Early Feedback System
(information request item 3). (R. Exh. 43; see also Tr. 957.) Moreover, the College’s own description of
the Early Feedback System discusses contacting instructors if their student survey results indicate a high
level of dissatisfaction. (GC Exh. 45; Tr. 958–959.) To the extent that Marcus did not understand that
terminology (see Tr. 964–967), that misunderstanding is chargeable to the College.
JD–12–13
37

contrast, information concerning extra-unit employees is not presumptively relevant, and thus
relevance must be shown. A-1 Door & Building Solutions, 356 NLRB No. 76, slip op. at 2
(2011). The burden to show relevance is not exceptionally heavy, as the Board uses a broad,
discovery-type standard in determining relevance in information requests. Id.
5
The information that PFAC requested about the Early Feedback System is presumptively
relevant because it relates to the terms and conditions of employment of PFAC members.
Through Marcus, the College admitted that it did not provide any information to PFAC in
response to its requests for the names of instructors who had been notified that there was
dissatisfaction with their work performance, and any actions taken regarding those instructors, 10
because Marcus determined that those requests were “overbroad, unlimited in scope, vague, and
ambiguous.”

Marcus’ explanation does not establish a defense. As the Board has explained, “[i]t is
well established that an employer may not simply refuse to comply with an ambiguous or 15
overbroad information request, but must request clarification and/or comply with the request to
the extent it encompasses necessary and relevant information.” National Steel Corp., 335 NLRB
747, 748 (2001) (quoting Keauhou Beach Hotel, 298 NLRB 702 (1990)), enfd. 324 F.2d 928 (7
th

Cir. 2003). The College ran afoul of those legal principles when it decided not to provide
information in response to items 1 and 2 of PFAC’s information request without attempting to 20
clarify, or comply with, those requests.32

Since the College did not fulfill its obligations under the Act in responding to PFAC’s
request for information about the Early Feedback System, I find that the College violated Section
8(a)(5) and (1) of the Act as alleged in paragraphs VIII(a) and (e) of the complaint. 25

F. Class Assignments to Vallera for summer and fall 2012

1. Complaint allegations
30
The complaint alleges that since March 2012, the College failed to refused to assign
summer 2012 semester classes to Diana Vallera because she engaged in union and protected
concerted activities, and because she testified in Case 30–CA–018888, and cooperated in the
investigation (including providing affidavits to the Board) in Cases 13–CA–073486, 13–CA–
076794, 13–CA–078080 and 13–CA–081162. (GC Exh. 1(ff), pars. VI(e)–(f) (alleging 35
violations of Section 8(a)(3), (4) and (1) of the Act).)

The complaint also alleges that since March 2012, the College failed and refused to
assign more than one class section to Diana Vallera for the fall 2012 semester because she

32
The Board’s decision in A T & T Corp., 337 NLRB 689 (2002) (a case cited by the College – see
R. Posttrial Br. at 69–70) is not applicable here because it did not involve a refusal to provide information
(as here) because the employer believed the request was overbroad and ambiguous. Instead, the employer
in A T & T Corp. responded to all of the union’s information requests, and the question of whether the
employer violated Section 8(a)(5) turned on the factual question of whether the employer reasonably
believed that its information request responses were complete. 337 NLRB at 691. The College cannot
make a similar claim here since, as previously noted, it did not respond to two of PFAC’s requests
because it deemed them to be overbroad and ambiguous.
JD–12–13
38

engaged in union and protected concerted activities, and because she testified in Case 30–CA–
018888, and cooperated in the investigation (including providing affidavits to the Board) in
Cases 13–CA–073486, 13–CA–076794, 13–CA–078080 and 13–CA–081162. (GC Exh. 1(ff),
pars. VI(e)–(f) (alleging violations of Section 8(a)(3), (4) and (1) of the Act).)
5
And, the complaint alleges that since on or about May 13, 2012, the College has failed
and refused to provide PFAC with information that PFAC requested concerning the College’s
assignments of classes to part-time faculty in the photography department for fall 2012. (GC
Exh. 1(ff), pars. VIII(b), (f) (alleging violation of Section 8(a)(5) and (1)).)
10
2. Findings of fact

a. Faculty class assignment process - overview

For every semester, the College has to determine what courses it will offer, how many 15
class sections it will offer for each course, and which faculty members it will assign to teach the
various class sections.33 The number of class sections that is needed for a particular course
generally depends on student demand for the course. Student demand for courses can be affected
by a host of factors, including: whether student enrollment is increasing or decreasing in a
particular department or in the College as a whole; whether the course is required for a particular 20
major, or is an elective; and whether the course has prerequisites or is a prerequisite for other
courses. (Tr. 457, 591–592, 610–611, 814–815.)

As part of the process of assigning faculty to teach classes, several months before each
academic year each department at the College asks its faculty members to submit forms setting 25
forth their availability to teach and their desired course assignments. (Tr. 259.) The departments
then make faculty teaching assignments, keeping in mind that full-time faculty members have
priority over part-time faculty members, and that in some limited circumstances, part-time
faculty members who have taught at least 51 credit hours at the College have assignment priority
(and bumping rights) over less experienced part-time faculty members.34 (Tr. 456, 524; R. Exh. 30
1, Article VII(1) (explaining that bumping rights arise when, due to low enrollment or the need
to assign classes to a full-time faculty member, an experienced part-time faculty member loses a
class section that they were assigned); see also R. Exh. 1, Article VII(2) (for purposes of
“instructional continuity,” the College generally will explore finding alternate classes for part-
time faculty members if the class they were slated to teach is canceled).) 35

The College notifies part-time faculty members of their class assignments by sending
them an adjunct faculty teaching assignment form. (See, e.g., GC Exhs. 97–99.) When faculty
assignments have been completed, the College posts all course and class offerings on its online
catalog (OASIS) for students to review and begin course registration. (Tr. 259–260.) 40

33
A single course can have several class sections, depending on the number of students who wish to
complete the course. (Tr. 476.) For example, in the fall 2010 semester, the View Camera course had 4
class sections. (R. Exh. 82.)
34
Part-time faculty members are limited to teaching 9 credit hours per semester, and a total of 18
credit hours for the fall and spring semesters. The College may grant special permission to exceed those
limits. (Tr. 263–264.)
JD–12–13
39

b. Diana Vallera’s teaching assignment history

Between 2006 and 2011, Vallera generally taught two classes each spring and fall
semester: View Camera I; and either Studio I (a/k/a Introduction to Lighting) or Studio II (a/k/a
Advanced Lighting). In addition, between 2008 and 2011, Vallera taught View Camera I during 5
each summer semester.35 (GC Exh. 90(b); see also Tr. 270, 1219–1220.) It is undisputed that
Vallera consistently received outstanding evaluations from students who took her classes.
Among other awards and accolades, Vallera was selected to teach in Italy for the summer of
2007, and was nominated at least twice for the College’s excellence in teaching award (finishing
as runner up for that award in 2010). (Tr. 245, 250–251, 271–273, 300, 1248; GC Exhs. 103, 10
104.)

c. December 2011 faculty meetings about the faculty class assignment process

On December 7–8, 2011, the photography department held meetings to advise faculty 15
about the faculty class assignment process. First, department managers explained that they
would be following a “leaner” scheduling model than in previous years. In previous years, the
department used a comprehensive scheduling model, under which it would announce a full list of
classes, and then eliminate certain classes if student enrollment fell short. For the next and future
school years, however the department would announce a limited (leaner) list of classes, and then 20
add classes only if warranted by high student enrollment or other factors.36 (Tr. 835–836.) As
the department explained, a “lean schedule is set to [e]nsure that courses will fill and that faculty
are able to teach the courses they are offered to teach.” (R. Exh. 35, p. 3.)

Second, department managers presented data showing that enrollment in the photography 25
department had declined to 689 students (down from 776 in fall 2009). (R. Exh. 35, p. 9.) And
third, department managers advised faculty of changes in the photography department
curriculum due to revisions that the department made to its B.A. degree requirements. Among
other changes, View Camera I would no longer be a required course for the B.A. degree. (R.
Exh. 35, p. 13 (also noting that 3 other courses were no longer required for the B.A. degree).) 30

d. Vallera’s union activities in 2012

In early 2012, Vallera remained active in her role as PFAC president. For example, on
February 6–8, Vallera testified as a witness for the Acting General Counsel/PFAC and also sat at 35
counsels’ table during the trial that the Acting General Counsel, the College and PFAC litigated
in Case 30–CA–18888. (Tr. 189; GC Exh. 7.) PFAC also filed charges with the Board in Cases
13–CA–073486, 076794, 078080 and 081162 that related to Vallera’s activities as PFAC’s

35
The faculty assignment process for summer semester classes was more informal than the
assignment process for fall and spring semesters. In Vallera’s case, instead of filling out an availability
form, she was approached by Elizabeth Ernst in 2008 to see if she was interested in teaching a summer
class, agreed to do so, and generally was “rolled over” to teach in subsequent summers. (Tr. 274–275; see
also GC Exh. 90(b).)
36
Eliza Nichols, dean of the school of fine and performing arts, issued the directive for departments
to begin using leaner scheduling. (Tr. 836; see also R. Exh. 20 (February 2010 e-mail from Nichols to
department chairs that encouraged them to take steps to, among other things, avoid opening up classes
that would have to be canceled later).)
JD–12–13
40

President. (GC Exhs. 1(a), (e), (g), (i), (m) and (s) (original and amended charges filed between
January 30 and May 16, 2012).)

In addition, on March 12, the Columbia Chronicle ran an article about the ongoing
difficulties that PFAC and the College were having with bargaining for a new collective-5
bargaining agreement. In that article, Vallera asserted that PFAC was going to file another
unfair labor practice charge against the College because it had not provided PFAC with dates to
meet for further negotiations. (GC Exh. 27.)

e. Photography department announces new “foundations” courses 10

On February 8, the photography department held a faculty meeting to discuss its new
“foundations” courses that would replace four courses (Photo I & II, and Darkroom I & II), and
would require some modifications to other courses (including Digital I and Introduction to
Lighting). (R. Exh. 34; see also R Exh. 94.) The department notified faculty that it would offer 15
training in the new foundations courses beginning in May and June 2012, and would start
phasing in the foundations courses in fall 2012. (R. Exh. 34.)

f. March 2012 – Vallera notifies the College of her availability to teach during the
2012–2013 school year 20

On February 10, 2012, the photography department distributed class availability forms to
its faculty for the fall 2012 and spring 2013 semesters. (GC Exh. 91(a); R. Exh. 38.) Vallera
returned her form, and indicated that she would be interested in teaching the following courses
(listed in order of preference): Introduction to Lighting (two classes); View Camera; Photo 25
Seminar; Documentary; and Advanced Lighting. Vallera also expressed interest in taking the
training for, and teaching, the new foundations courses, but noted that she might need to amend
her form after she received information from photography department chair Peter Fitzpatrick
about course and curriculum changes in the department that were announced in the February 8
faculty meeting.37 (GC Exh. 91(a); see also R. Exh. 93.) 30

On February 17, 2012, Vallera contacted associate photography department chair Kelli
Connell to discuss her teaching availability for the 2012-2013 academic year. (R. Exh. 95.)
Connell first confirmed with Fitzpatrick and Susan Marcus38 that it would be appropriate for her
to meet with Vallera. (Tr. 864; R. Exh. 95.) In the ensuing communications between Connell 35
and Vallera about Vallera’s schedule and availability, Vallera asked if she would still have a
View Camera class for the summer. Connell responded on February 27, 2012, by advising

37
Vallera was not able to attend the February 8 faculty meeting, and could not obtain a copy of the
PowerPoint presentation that was used at the meeting. In response to Vallera’s request for information
about the photography department curriculum changes that were announced at the meeting, on February
17, Fitzpatrick e-mailed a memorandum to photography department faculty about the new foundations
courses that would be offered in the department. (R. Exhs. 93–94.)
38
Since Fitzpatrick was relatively new to the College, and it was at times unclear whether Vallera
sent her e-mail correspondence in her personal capacity or in her capacity as PFAC president, Marcus
wished to monitor his communications with Vallera. Vallera was the only faculty member in the
photography department that Marcus monitored in this fashion. (Tr. 862, 872–873, 885–886, 910, 932–
934.)
JD–12–13
41

Vallera that the College would not be offering View Camera during the summer 2012 semester.
(R. Exh. 96.)

g. Vallera expresses concern to the College about summer and fall 2012
faculty class assignments 5

On March 19, 2012, Vallera observed that students had commenced online registration
for the fall 2012 semester, but did not see any part-time faculty members listed as teaching
classes. Vallera also observed that a full-time faculty member was teaching the only View
Camera class offered. Vallera e-mailed Connell to ask about discussing alternative classes that 10
she could teach in fall 2012, and also to ask about “the loss of [her] summer class,” why View
Camera was not offered in summer 2012, and why she was not offered any other classes for that
semester. Finally, Vallera advised Connell that they needed to meet to discuss curriculum
changes in the photography department, any class limits, and any changes in past practices for
how faculty class assignments are handled. (Tr. 194, 284–285; GC Exh. 91(b); see also GC Exh. 15
90(c) (indicating that the photography department offered 15 classes and 1 internship in summer
2012, and that View Camera dropped from 5 classes in summer 2010 (and before), to 1 class
section in summer 2011, and no classes in summer 2012).)39

Vallera e-mailed Connell (along with Fitzpatrick) again on March 22 to follow up on her 20
March 19 e-mail, and to state PFAC’s view that working conditions at the College should remain
at the status quo while the College and PFAC bargained for a successor collective-bargaining
agreement. Vallera asserted that the changes taking place in the photography department
impacted the working conditions of part-time faculty members, and demanded that the College
bargain with PFAC about its decisions regarding the photography department, and the impact 25
and effects of those decisions. (GC Exh. 91(b), p. 7.)

h. The College responds to Vallera’s questions about faculty class assignments

Connell responded to Vallera’s e-mails on March 23 by inviting Vallera to add another 30
course to her availability form instead of View Camera. Vallera agreed to do so, and sent
Connell a list of the following 14 types of classes that she would be willing to teach: Introduction
to Lighting; View Camera; Photography Seminar; Advanced Lighting; Foundations of
Photography I; Documentary; Portfolio Development; Advanced Color; 19
th
Century or
Experimental; digital classes; other studio classes; Photography in Chicago; Advanced View 35
Camera; and darkroom classes. (GC Exh. 91(b), pp. 3–5.)

On March 23, 2012, Susan Marcus also responded to Vallera’s March 19 e-mail to
Connell.40 Regarding class assignments for fall 2012, Marcus agreed that Vallera should contact

39
There is no evidence that Vallera was in a position to bump any of the faculty members assigned to
summer 2012 classes from their assignments. (R. Exh. 1, Article VII (outlining the parameters for
“bumping” or class reassignment); R. Exh. 46, p. 2 (indicating that 13 of 15 the part-time faculty
members assigned to summer classes could not be bumped because they had accrued 21 or more credit
hours; no data is available for the remaining 2 part-time faculty members); GC Exh. 90(c) (indicating that
one faculty member was assigned to 1 class and 1 internship).)
40
It was highly unusual for an administrator at Marcus’ level to get involved with questions about
class assignments to individual faculty members, unless such an issue arose as part of a formal grievance.
JD–12–13
42

Connell about the classes that Vallera believed she was qualified to teach for that semester.
However, regarding Vallera’s concern about losing her summer class, Marcus responded:

Please clarify your rationale that there was a ‘loss of my’ summer class in relation to the
decisions in the [employee R.P.] arbitration and case # (13–CA–45973).41 5

Similarly, regarding Vallera’s request that the College bargain with PFAC about its decisions to
make changes in the photography department and the effects of those decisions, Marcus stated:

With respect to your request for a meeting about the above topics, please also see the 10
decisions in the [employee R.P.] arbitration and case # (13–CA–45973).42 Additionally,
as you have been informed repeatedly, these questions should not be asked of the
Associate Chair [Connell]. If you persist in ignoring appropriate channels, your requests
will not be forwarded to the appropriate office.
15
(GC Exh. 92; see also Tr. 926–928, 935.)

Marcus’ intervention prompted a swift response from Vallera. Indeed, later on March 23,
Vallera e-mailed Marcus and asserted:
20
As you have been repeatedly warned in the past, PFAC will not tolerate any intimidation
tactics on the part of this administration. Your tactics [] of avoiding to answer questions,
intimidating, and not allowing chairs of departments to meet with PFAC to resolve issues
will not be tolerated. PFAC absolutely has a right to request a demand to bargain over
the terms [and] conditions of employment and what you seem to be avoiding is the very 25
important issue of remaining status quo while in bargaining.

(GC Exh. 92.) Vallera went on to contend that the College changed the status quo by not
including part-time faculty in the online course catalog, and asked Marcus to explain whether the
photography department chair made that change on his own, or instead pursuant to a directive 30
from someone else at the College. (Id.)

Normally, a faculty member would be expected to raise class assignment issues with their immediate
supervisor. (Tr. 485–487, 911–912.)
41
As previously noted, the arbitrator in employee R.P.’s grievance ruled that R.P., as a part-time
faculty member, was only employed during the semesters that R.P. was hired to teach, and had no
standing to question decisions about future employment. (See Section B(2)(e), supra (discussing GC Exh.
54). ) In Case 13–CA–045973 (a charge asserting that the College made unlawful changes to Vallera’s
class schedule), the Acting General Counsel denied PFAC’s appeal from the Regional Director’s refusal
to issue a complaint, explaining that “the evidence indicated no contractual right of part-time faculty to
any particular course or schedule.” (R. Exh. 7.)
42
Marcus admitted that she should have forwarded Vallera’s request for bargaining to Leonard
Strazewski, since he was handling all bargaining with PFAC. (Tr. 980–982.) Marcus’ expertise is with
handling grievances that allege that the College violated the existing collective-bargaining agreement.
(Tr. 980.)
JD–12–13
43

i. March 28, 2012 – studio program coordinator weighs in on Vallera’s request for an
additional class to teach in the fall 2012 semester

On March 28, 2012, Elizabeth Ernst, coordinator of the studio program in the
photography department, offered her input to Fitzpatrick about whether Vallera should be 5
assigned a second class to teach for the fall 2012 semester.43 (Tr. 886–887, 912; GC Exh. 106.)
Ernst offered the following comments:

Peter,
10
Are the natives restless yet? I am not sure if the schedule has gone live yet but wanted to
let you know my thoughts about a second class for Diana [Vallera]. She will request a
section of Advanced Lighting, which she has taught ONCE a few years ago. [Employee
T.] graciously tutored her for teaching this class. She is not qualified to teach this course
again, thus she hasn’t been offered this as a possibility. I mentioned to Kelli [Connell] 15
that she would actually be good teaching a section of the new foundations course. I
believe she uses/knows Lightroom. But we are not as you know, obligated to provide
more [than] one class to anyone. I am looking forward to [employee L.L.] teaching a
studio course in the fall.44 I assure you that I will work with her, as I do with everyone to
get her up to speed. It was a great suggestion by Kelli. [Employee L.L.] is great to work 20
with, dedicated, and very committed to our department. I like her work, and respect the
fact that she is a problem solver and not a problem maker.45 Her part time faculty

43
In 2005, Ernst and Vallera were friends, and Ernst asked Vallera if she would be interested in
teaching a course at the College. (Tr. 25.) Ernst and Vallera had a falling out in early 2009, and have had
a strained relationship since that time. (Tr. 336–337, 1216, 1277–1278.) I have not made findings
regarding the specific reason for the 2009 dispute between Ernst and Vallera because the competing
accounts of that dispute were equally credible.
It is unclear what specifically prompted Ernst to contact Fitzpatrick with her thoughts about
Vallera in March 2012. However, it is an established practice in the photography department for the
associate chair to consult with coordinators such as Ernst about faculty class assignments. (R. Exh. 35,
pp. 5–6.)
44
Employee L.L. was a relatively new teacher at the College. Fitzpatrick admitted that Vallera was
highly qualified to teach a studio (Introduction to Lighting) class, and was more experienced than
employee L.L. (Tr. 878, 887–888.) Fitzpatrick explained, however, that the photography department has
an interest in bringing new faculty members into the program to ensure that there is a pool of instructors
available to draw from each semester. (Tr. 890–891.)
45
Ernst admitted that she viewed Vallera as a problem maker, but asserted that she only formed that
opinion based on individual, petty concerns that Vallera raised periodically. (1211–1214; see also Tr.
921.) I do not credit Ernst’s explanation on that point. The record is clear that Vallera was vocal on a
host of issues in the photography department (and at the College as a whole), including multiple issues
related to the PFAC bargaining unit. It is not plausible that Ernst limited her frustration with Vallera only
to the occasions where Vallera raised concerns that would not qualify as union or protected concerted
activities.
I also have not credited Ernst’s assertion that Vallera was not qualified to teach the Advanced
Lighting course. Ernst’s assessment is tainted by her negative views of Vallera, and is also undermined
by the fact that in January 2009 (shortly after Vallera finished teaching the Advanced Lighting course),
photography department academic manager Liz Chilsen asked Vallera to send her the goals and
objectives that she developed for Advanced Lighting so they could be shared with the rest of the
JD–12–13
44

evaluations have been really good. Feedback from the students is also very good. We
can of course discuss the above further in person or on the phone. . . .

Please let me know your thoughts regarding any of the above. I just feel that we have to
make our decisions based on the needs of our students, and not people needing additional 5
classes or just because they put a “request” to teach a class on their availability forms. I
know from our conversations that you agree with this.

(GC Exh. 106.) Fitzpatrick agreed that he defers to Ernst regarding assignment of classes to
faculty members in the studio area of the photography department.46 (Tr. 913.) 10

j. The College cautions Vallera to direct her requests for bargaining
to the correct College personnel

On April 10, Marcus responded to Vallera’s March 23 e-mail to explain that the purpose 15
of her (Marcus’) March 23 e-mail was to ask PFAC to follow the proper protocol for bargaining.
Specifically, Marcus stated:

[I]t is not appropriate for PFAC to attempt to discuss bargaining/contract related topics
with Associate Chairs. The College does not know how much clearer it can make this 20
point: Bargaining issues raised by PFAC should be directed to Len Strazewski, issues
arising under the contract should be addressed to Pegeen Quinn. Those are the
appropriate avenues for PFAC. Unit members are always encouraged to communicate
with the Chair or Associate Chair about their individual concerns or questions. Under the
CBA, individual unit members meet with the Chair to informally resolve any grievance. 25

(R. Exh. 92; see also Tr. 931–932.) Marcus added that it was not clear until Vallera’s March 23
e-mail that PFAC wished to bargain about whether the photography department should maintain
the status quo with its operations, and promised to forward that issue to Strazewski for a
response. Finally, Marcus advised Vallera that the College would interpret Vallera’s questions 30
about who authorized the changes in the photography department as a request for information,
and accordingly would forward the request to Pegeen Quinn for processing. (R. Exh. 92.)

photography department. (Tr. 1282; CP Exh. 8.)
Finally, I have considered the fact that Ernst stated that Vallera would be a good fit for the new
Foundations course. That recommendation, however, is consistent with my findings about Ernst’s views
of Vallera, because the Foundations courses were not part of the studio program, and thus assigning
Vallera to one of those classes would reduce Ernst’s contact with Vallera (a desirable result, from Ernst’s
perspective). (Tr. 913, 1203–1204, 1206 (noting that Ernst was responsible for the studio area, but was
merely part of a team that handled the Foundations courses).)
46
I do not credit Fitzpatrick’s testimony that Ernst’s characterization of Vallera as a problem maker
had no effect on his decisions faculty class assignments for the summer and fall 2012 semesters. (Tr.
922.) Fitzpatrick himself was new to the College (having started in fall 2011), and admitted that he
deferred to Ernst when it came to faculty assignments in the studio and foundations areas. (Tr. 913,
1218.)
JD–12–13
45

k. The College finalizes its faculty class assignments for the fall 2012 semester

On April 23, 2012, the College notified Vallera that she was assigned to teach one class
in the fall 2012 semester (Introduction to Lighting). (Tr. 294–295; GC Exh. 99.) Employee L.L.
was also assigned to teach one Introduction to Lighting class for fall 2012. (GC Exh. 90(d).) 5
The following part-time faculty members in the photography department were assigned to teach
more than one class for fall 2012:

Name Classes Assigned – Fall 2012 Comments
A. B.

Foundations of Photography I
Introduction to Lighting

J.E. Advanced Retouching
Fashion Photography

B.F. Advanced Lighting
Furniture Construction
Furniture Construction is not
in the photography department
(Tr. 897–898, 915–916.)
K.G. Foundations of Photography I
Documentary Methods

G.G. Foundations of Photography I
First Year Seminar
First Year Seminar is not in
the photography department
(Tr. 917.)
W.J. Foundations of Photography I
Foundations of Photography I
First Year Seminar
First Year Seminar is not in
the photography department
(Tr. 917.)
C.K. Photography II Workshop
Website Publishing I

A.M. Digital Imaging I
Digital Imaging II

J.M. Advanced Lighting
Internship: Photography
Internship: Photography is an
extra assignment, but not a
traditional class, and is thus
paid at a lower rate of
approximately $25/hour (Tr.
895–896, 917–918.)
J.O. Experimental Photography
Experimental Photography

C.S. Foundations of Photography I
Special Topics in Fine Art Photography

M.S. Foundations of Photography I
Digital Imaging II
Digital Imaging II

(GC Exh. 90(d); see also Tr. 875–877, 881 (Fitzpatrick admitted that Vallera was competent to 10
teach Introduction to Lighting, View Camera, Foundations of Photography, Advanced View
Camera, digital classes, and darkroom classes).) All of the faculty members listed in the table
above had sufficient accrued credit hours (21 or more) to preclude being bumped from their
JD–12–13
46

classes by a more experienced part-time faculty member (such as Vallera). (R. Exh. 1, Article
VII; R. Exh. 46, p. 2.)

On May 1, 2012, Vallera e-mailed Connell and asked to speak with her about a second
class for fall 2012.47 On May 2, Connell responded: 5

We have sent out the teaching assignments for the fall. Due to low enrollment and our
new BA [degree requirement] changes, we have fewer classes offered for this fall. As of
now, you are only scheduled for one course in the fall.
10
(R. Exh. 97.)

l. May 13, 2012 – Vallera submits an information request about faculty class assignments

On May 13, Vallera wrote to Louise Love and Leonard Strazewski to request that the 15
College bargain over the curriculum and faculty class assignment changes in the photography
department, and the effects of those changes. Vallera included an information request in her
letter to obtain: a list of all photography part-time faculty that have accrued less than 51 credit
hours of teaching experience but were offered a second class; a copy of all part-time faculty
availability forms for fall 2012; the number of classes offered to PFAC members that have 20
accrued over 51 credit hours of teaching experience; and the rationale for all changes in the
photography department. (GC Exh. 76, p. 2)

m. July 19, 2012 – Vallera renews her May 13, 2012 information request
25
On July 19, 2012, Vallera contacted Strazewski to renew the information request that she
submitted on May 13.48 Strazewski confirmed receipt of Vallera’s renewal request later that
same day. (GC Exh. 76.) On September 28, 2012, the College provided PFAC with information
in response to Vallera’s May 13 information request.49 (Tr. 194, 746; R. Exhs. 46, 48.)
30
3. Discussion and analysis

a. Did the College violate Section 8(a)(3) or (4) of the Act by failing to assign Vallera any
classes to teach for the summer 2012 semester?
35
The Acting General Counsel and I agree that the allegations regarding the College’s
failure to assign classes to Vallera should be analyzed under the legal standard that the Board

47
Earlier on May 1, Vallera and PFAC representative Mary Lou Carroll attempted to meet with
Connell and Fitzpatrick to discuss issues in the photography department. The meeting was canceled when
a dispute arose about whether Carroll (who was not part of the photography department) should be
permitted to attend the meeting. (Tr. 857–858.)

48
On June 13, Vallera contacted Strazewski to re-submit her May 13 request that the College bargain
with PFAC about curriculum and faculty class assignment changes (and their effects) in the photography
department. (GC Exh. 76, pp. 1–2.)
49
The record is unclear as to whether the College’s response was complete. (Compare Tr. 194 and R.
Exh. 49 with Tr. 758.) That ambiguity is not material to my analysis.
JD–12–13
47

described in FES, 331 NLRB 9 (2000). To establish that Vallera’s non-selection for certain
classes was discriminatory, the Acting General Counsel needed to make the following initial
showing: (1) that the College was selecting faculty for class assignments, or had concrete plans
to do so, at the time of the alleged unlawful conduct; (2) that Vallera had experience or training
relevant to the announced or generally known requirements of the available classes (or in the 5
alternative, that the College has not adhered uniformly to the requirements, or that the
requirements were themselves pretextual or were applied as a pretext for discrimination); and
(3) that antiunion animus contributed to the decision not to select Vallera for the class
assignments. Once the Acting General Counsel makes its initial showing, the burden will shift to
the College to show that it would not have selected Vallera even in the absence of her union 10
activities. If the College fails to show that it would have made the same decisions even in the
absence of Vallera’s union activities or affiliation, then a violation of Section 8(a)(3) (or 8(a)(4))
has been established. Id. at 12.

There is no dispute that the College needed to select faculty members (including part-15
time faculty members) to teach classes for the summer 2012 semester. There is also no dispute
that Vallera was qualified to teach several classes that the College was offering that semester.
The Acting General Counsel runs into difficulty, however, with its initial showing that antiunion
animus contributed to the College’s decision not to select Vallera for a summer 2012 teaching
assignment. Suspicious timing can support a finding of discriminatory animus, but in this case, 20
the probative value of the close timing between Vallera’s early 2012 protected activities
(including her participation in the trial in Case 30–CA–18888 and PFAC’s filing of the charge in
Case 13–CA–07348650) and the College’s decision about summer 2012 class assignments is
limited because the College did not deviate from its customary time period for making summer
semester teaching assignments. Given that fact, the close timing between Vallera’s early 2012 25
protected activities and the College’s February 27, 2012 decision not to offer Vallera’s
customary View Camera class in the summer 2012 semester was coincidental. See El Paso
Electric Co., 355 NLRB 428, 429 (2010) (finding that the probative value of a temporal
relationship between the employee’s protected activity and the employer’s action was diminished
where the timing of the employer’s action was dictated by the employee). Moreover, the 30
College’s decision not to offer View Camera in the summer 2012 semester was not tainted by
discriminatory animus.51 To the contrary, student demand for View Camera had been decreasing

50
The charges in Cases 13–CA–076794. 078080 and 081162 were filed after the College made its
summer 2012 faculty class assignments. (GC Exh. 1(m) (charges filed on March 16, April 4 and May 16,
2012, respectively).)
51
On this point, the Acting General Counsel argued that the College’s actions associated with the
bargaining disputes between the College and PFAC support a finding that animus contributed to the
College’s decisions regarding Vallera’s class assignments. (GC Posttrial Br. at 58–59 (citing the
College’s decision to resubmit an old contract proposal the day after it received service of the complaint
in Case 30–CA–018888, and the fact that the College blamed Vallera for the breakdown in negotiations
for a successor bargaining agreement).) While it is true that, depending on the facts of a given case,
evidence of Section 8(a)(5) violations may support a finding that an employer acted with animus for
purposes of a Section 8(a)(3) claim, that theory does not fit here. Love, Strazewski and Annice Kelly
were the key players for the College when it came to bargaining. They had no involvement, however,
with the decisions that the College made about Vallera’s summer and fall 2012 class assignments. I
therefore do not see a basis for drawing a connection (for purposes of animus or otherwise) between the
Section 8(a)(5) violations that the College committed and the Section 8(a)(3) and (4) claims at issue here.
JD–12–13
48

since summer 2011, and the drop in demand accelerated after the College reclassified View
Camera as an elective course in December 2011, leading to the College reasonably deciding not
to offer the course in summer 2012.52

Since the Acting General Counsel did not present sufficient evidence to make an initial 5
showing that the College discriminated against Vallera when it did not assign her a class to teach
for the summer 2012 semester, its Section 8(a)(3) and (4) claims about that decision fall short. I
accordingly recommend that the allegation in paragraphs VI(e)–(f) concerning summer 2012
class assignments be dismissed.
10
b. Did the College violate Section 8(a)(3) or (4) of the Act by failing to assign Vallera more
than one class to teach for the fall 2012 semester?

In contrast to its presentation regarding summer 2012 class assignments, the Acting
General Counsel made a strong initial showing that the College discriminated against Vallera 15
when it did not select her to teach a second class for the fall 2012 semester. There is no dispute
that the College needed to select faculty members (including part-time faculty members) to teach
classes for the fall 2012 semester, or that Vallera was qualified to teach several classes that the
College was offering that semester (such as Foundations of Photography, which was the
“second” class assigned to several faculty members). The Acting General Counsel also 20
presented the following compelling evidence that antiunion animus contributed to the College’s
decision: (a) the College decided not to assign Vallera a second fall semester 2012 class shortly
after Vallera asked the College to bargain with PFAC about changes to working conditions in the
photography department; and, more important, (b) studio coordinator Elizabeth Ernst sent an e-
mail to Fitzpatrick that labeled Vallera as a “problem maker,” and discouraged Fitzpatrick from 25
assigning additional classes to faculty members (such as Vallera) just because they requested
them on their availability forms. I therefore find that the Acting General Counsel made an initial

Similarly, the Acting General Counsel did not establish that a finding of animus could be based
on Vallera’s interactions with Marcus. While Marcus did respond to some of Vallera’s e-mails about
class assignments, her role was limited to addressing Vallera’s requests for information and bargaining.
There is no evidence that Marcus participated in or influenced Fitzpatrick’s decisions about Vallera’s
summer and fall 2012 class assignments.
52
Contrary to the Acting General Counsel’s assertion in its brief (see GC Posttrial Br. at 62–63), the
Acting General Counsel did not demonstrate that the College had a past practice of finding replacement
classes for faculty who did not receive their usual summer class assignments. See Palm Beach Metro
Transportation, LLC, 357 NLRB No. 26, slip op. at 4–5 (2011) (noting that the party asserting the
existence of a past practice bears the burden of proof on the issue, and that the evidence must show that
the practice occurred with such regularity and frequency that employees could reasonably expect the
practice to continue or reoccur on a regular and consistent basis), enfd. 459 Fed. Appx. 874 (11
th
Cir.
2012). The College’s class assignment records do not show any such past practice. (See GC Exh. 90(c)–
(d) (showing that it was not uncommon for a faculty member to teach a class one summer, and then not
teach any classes the following summer, and also showing no clear pattern of faculty receiving “extra”
classes in the fall semester after not receiving a summer semester class (such as employees C.E. (2012),
G.K. (2011), and P.C. (2011).) Further, to the extent that Vallera testified that the College did have a past
practice of finding replacement classes (see Tr. 1293), I did not credit that testimony because although it
was unrebutted, Vallera’s testimony on that point was not based on her personal knowledge, and was
therefore speculative and unreliable.
JD–12–13
49

showing that the College discriminated against Vallera when it made its fall 2012 faculty class
assignments.

As its affirmative defense, the College maintains that it did not have enough classes
available to assign Vallera a second class for the fall 2012 semester. Consistent with the 5
College’s assertion, the evidentiary record shows that only 12 part-time faculty members in the
photography department received more than one class to teach in fall 2012. The record also
shows, however, that Vallera’s chances at receiving an additional class ended when Ernst labeled
Vallera as a problem maker because of her protected activities, and effectively discouraged
Fitzpatrick from assigning Vallera a second class. As a result, Fitzpatrick’s decision not to 10
assign Vallera a second class was tainted by discriminatory animus, stemming from his reliance
on Ernst’s biased recommendation, and from the fact that Ernst had direct input into Fitzpatrick’s
consideration of Vallera for a second fall 2012 class assignment. Bruce Packing Co., Inc., 357
NLRB No. 93, slip op. at 3 (2011) (explaining that “the Board’s case law is clear that the anti-
union motivation of a supervisor will be imputed to the decision making official, where the 15
supervisor has direct input into the decision”). The College’s affirmative defense accordingly
fails, and I find that the College violated Section 8(a)(3) of the Act when it failed to assign
Vallera more than one class to teach in the fall 2012 semester.53

c. Did the College unlawfully fail and refuse to respond to PFAC’s 20
May 13, 2012 information request concerning the College’s class assignments to part-time
faculty in the photography department for fall 2012?

An employer’s duty to bargain includes a general duty to provide information needed by
the bargaining representative in contract negotiations and administration. Generally, information 25
concerning wages, hours, and other terms and conditions of employment for unit employees is
presumptively relevant to the union’s role as exclusive collective-bargaining representative. By
contrast, information concerning extra-unit employees is not presumptively relevant, and thus
relevance must be shown. A-1 Door & Building Solutions, 356 NLRB No. 76, slip op. at 2
(2011). The burden to show relevance is not exceptionally heavy, as the Board uses a broad, 30
discovery-type standard in determining relevance in information requests. Id.

The duty to furnish information requires a reasonable good-faith effort to respond to the
request as promptly as circumstances allow. An employer must respond to the information
request in a timely manner, and an unreasonable delay in furnishing such information is as much 35
of a violation of Section 8(a)(5) as a refusal to furnish the information at all. Castle Hill Health
Care Center, 355 NLRB 1156, 1179 (2010) (citing Good Life Beverage Co., 312 NLRB 1060,
1062 fn. 9 (1993) and Amersig Graphics, Inc., 334 NLRB 880, 885 (2000)).

The evidentiary record shows that on May 13, 2012, Vallera contacted the College to 40
request information relevant to faculty class assignments in the photography department.
Specifically, Vallera asked for: information about part-time photography faculty that were

53
Ernst’s comments about Vallera, and Fitzpatrick’s resulting decision not to assign Vallera a second
class, were based on Vallera’s union activities, and not based on Vallera’s participation in the trial in Case
30–CA–018888 or on the Board charges that PFAC filed that related to Vallera’s union activities. I
therefore do not find that the College violated Section 8(a)(4) of the Act.
JD–12–13
50

offered a second class to teach; a copy of all part-time faculty availability forms for fall 2012;
the number of classes offered to PFAC members that have accrued over 51 credit hours of
teaching experience; and the rationale for all changes in the photography department. For two
months, the College did not respond at all to Vallera’s request, prompting her to renew her
request on July 19, 2012. An additional two months passed before the College (on September 5
28, 2012) finally provided Vallera with materials in response to her information request.

Based on those undisputed facts, I find that the College unreasonably delayed in
responding to PFAC’s May 13, 2012 information request. Although the College maintains that
PFAC could have obtained some of the information that it sought by performing its own search 10
on the College’s online course database, and that PFAC liaison Pegeen Quinn responded to the
information request as quickly as possible under the circumstances (see R. Posttrial Br. at 71–
72.), I do not find either of those arguments to be persuasive. Regardless of PFAC’s ability to
obtain some information through its own research, PFAC’s information requests were reasonable
and relevant because PFAC needed to have the College’s data and responses to establish a 15
foundation for discussion if and when the parties met to discuss faculty class assignments at the
bargaining table. See Castle Hill Health Care Center, 355 NLRB at 1183 (noting that an
employer’s duty to provide relevant information in its possession is not excused by the fact that
the information may be obtained elsewhere). Further, it was the College’s decision to leave
information request responses solely in the hands of one person (Pegeen Quinn) – to the extent 20
that the College’s staffing decision resulted in unreasonable delays, those delays are chargeable
to the College.

In light of the foregoing analysis, I find that the College unlawfully delayed in
responding to PFAC’s May 13, 2012 information request concerning class assignments to part-25
time faculty in the photography department for the fall 2012 semester.54

G. Alleged Unilateral Change to the Scope of the Bargaining Unit
and Repudiation of the Grievance Procedure
30
1. Complaint allegations

The complaint alleges that on or about March 23, 2012, Respondent unilaterally changed
the scope of the PFAC bargaining unit by only applying the terms of the collective-bargaining
agreement to individuals currently teaching a course. (GC Exh. 1(ff), pars. X(a)–(c) (alleging 35
violation of Section 8(a)(5) and (1), and Section 8(d)).)

The complaint also alleges that on or about March 23, 2012, Respondent repudiated the
grievance procedure contained in Respondent and PFAC’s collective-bargaining agreement.
(GC Exh. 1(ff), par. X(d) (alleging violation of Section 8(a)(5) and (1), and Section 8(d)).) 40

54
My finding here relies on a theory (unreasonable delay in responding to an information request)
that is slightly different from the theory that the Acting General Counsel alleged in the complaint (failure
and refusal to respond to an information request). However, the Board may find and remedy a violation
even in the absence of a specified allegation in the complaint if the issue is closely connected to the
subject matter of the complaint and has been fully litigated. That standard is satisfied here. See
Pergament United Sales, 296 NLRB 333, 335 (1989), enfd. 920 F.2d 130 (2d Cir. 1990)).
JD–12–13
51

2. Findings of Fact

a. The grievance procedure

Under the existing collective-bargaining agreement between the College and PFAC, the 5
parties agreed to a grievance procedure for any “complaint by a unit member, group of unit
members, or [PFAC] that there has been a violation, misinterpretation, or misapplication of any
provision” of the collective-bargaining agreement. (R. Exh. 1, Article IX.) Per the collective-
bargaining agreement, parties should first use their best efforts to resolve grievances informally
via a meeting with the relevant department chair. However, if the informal process fails, the 10
grieving party may initiate formal grievance proceedings that are composed of the following
steps:

Step 1 – The grieving party must file a written grievance with the College’s PFAC
liaison. The grievance “must cite the Article allegedly violated, misinterpreted, or 15
misapplied; the dates of the events which are the subject of the grievance; the person
present at the events, if applicable; the facts supporting the grievance, and the requested
remedy.” Once the grievance has been filed, the PFAC liaison shall meet with the
grievant, and then render a written decision on the grievance.
20
Step 2 – If the grievance is not resolved at Step 1, the grievant may submit the grievance
to the Provost/Vice President for Academic Affairs. The Provost, or his/her designee,
shall meet with the grievant and then render a written decision.

Step 3 – If the grievance is not resolved at Step 2, then PFAC may submit the grievance 25
to binding arbitration.

(R. Exh. 1, Article IX.)

b. Arbitrator’s decision in employee R.P.’s grievance about teaching assignments 30

On February 12, 2012, an arbitrator issued an award in a grievance that part-time faculty
member R.P. filed against the College. R.P. claimed that the College violated the collective-
bargaining agreement when it did not assign R.P. a class to teach in the fall 2010 semester (R.P.
was initially assigned a class, but the College withdrew that assignment before the fall 2010 35
semester began). (GC Exh. 54.) After reviewing the collective-bargaining agreement, the
arbitrator found that the agreement “carefully established that an adjunct, or part-time, instructor
is employed only when he or she is teaching a course during a finite period of time. Between
teaching assignments the adjunct has no status as an employee. He or she is hired solely for the
period of time during which the teaching occurs.”55 (GC Exh. 54, p. 10.) Accordingly, the 40

55 In support of his finding that part-time faculty members are employed only when they are
teaching a course during a finite period of time, the arbitrator cited the following provisions from the
collective-bargaining agreement (among others):

The final decision of who teaches each course is the sole prerogative of the department
Chairperson. (Article VII, Section 2);

JD–12–13
52

arbitrator ruled that the College did not violate the collective-bargaining agreement when it
withdrew R.P.’s teaching assignment, because R.P. was an applicant for employment and thus
“had no standing to question his future employment.” (GC Exh. 54, p. 12.)

c. Susan Marcus’ March 23 letter to Vallera 5

As previously noted, in spring 2012, Vallera was engaging in a dialogue with the
photography department chair and associate chair about her summer and fall 2012 class
assignments (or lack thereof). On March 23, Susan Marcus intervened in that discussion to
respond to issues that Vallera raised in a March 19 e-mail to the photography department. 10
Specifically, in response to Vallera’s request for a rationale for why she lost her summer class,
Marcus asked Vallera to “[p]lease clarify your rationale that there was a ‘loss of my’ summer
class in relation to the decisions in the [employee R.P.] arbitration and case # (13–CA–45973).”56

Marcus also responded to Vallera’s request that the College bargain with PFAC about its 15
decisions to make changes to the photography department’s class assignment procedures and
curriculum, and the effects of those decisions. On that issue, Marcus stated as follows:

With respect to your request for a meeting about the above topics, please also see the
decisions in the [employee R.P.] arbitration and case # (13–CA–45973).57 Additionally, 20
as you have been informed repeatedly, these questions should not be asked of the
Associate Chair [Connell]. If you persist in ignoring appropriate channels, your requests
will not be forwarded to the appropriate office.

(GC Exh. 92; see also Tr. 926–928, 935.) 25

The receipt and submission of a teaching availability form by a unit member does not obligate the
College in any way to provide an appointment or a particular assignment to that unit member. . . .
In addition, every form must include the following statement: “Submission of this form
constitutes a request, not a guarantee of teaching assignment. Further, since course enrollment, as
well as your qualifications and evaluations, determine teaching assignments, no assignment can
be considered final until student registration is completed. (Article VII, Section 4); and

The College may suspend, with or without pay, discharge, or take other appropriate disciplinary
action against a unit member for just cause. . . . For purposes of this Agreement, “discharge”
shall mean termination of employment during a semester and shall not refer to the failure to rehire
or to renew a faculty member’s appointment to teach for future semesters. This Article X shall
not apply to decisions by the College not to rehire or not to renew a unit member’s appointment
to teach future semesters. (Article X, Section 1).

(GC Exh. 54, pp. 2–3, 10–12.)
56
In Case 13–CA–45973 (a charge asserting that the College made unlawful changes to Vallera’s
class schedule), the Acting General Counsel denied PFAC’s appeal from the Regional Director’s refusal
to issue a complaint. In support of that decision, the Acting General Counsel stated that “the evidence
indicated no contractual right of part-time faculty to any particular course or schedule.” (R. Exh. 7.)
57
Marcus admitted that she should have forwarded Vallera’s request for bargaining to Leonard
Strazewski, since he was handling all bargaining with PFAC. (Tr. 980–982.) Marcus’ expertise is with
handling grievances that allege that the College violated the existing collective-bargaining agreement.
(Tr. 980.)
JD–12–13
53

Marcus’ intervention prompted a swift response from Vallera, as later on March 23,
Vallera e-mailed Marcus and asserted:

As you have been repeatedly warned in the past, PFAC will not tolerate any intimidation 5
tactics on the part of this administration. Your tactics [] of avoiding to answer questions,
intimidating, and not allowing chairs of departments to meet with PFAC to resolve issues
will not be tolerated. PFAC absolutely has a right to request a demand to bargain over
the terms [and] conditions of employment and what you seem to be avoiding is the very
important issue of remaining status quo while in bargaining. 10

(GC Exh. 92.) Vallera went on to contend that the College changed the status quo by not
including part-time faculty in the online course catalog, and asked Marcus to explain whether the
photography department chair made that change on his own, or instead pursuant to a directive
from someone else at the College. (Id.) 15

d. The College clarifies its position about PFAC bargaining requests

On April 10, Marcus responded to Vallera’s March 23 e-mail to explain that the purpose
of her (Marcus’) March 23 e-mail was to ask PFAC to follow the proper protocol for bargaining. 20
Specifically, Marcus stated:

[I]t is not appropriate for PFAC to attempt to discuss bargaining/contract related topics
with Associate Chairs. The College does not know how much clearer it can make this
point: Bargaining issues raised by PFAC should be directed to Len Strazewski, issues 25
arising under the contract should be addressed to Pegeen Quinn. Those are the
appropriate avenues for PFAC. Unit members are always encouraged to communicate
with the Chair or Associate Chair about their individual concerns or questions. Under the
CBA, individual unit members meet with the Chair to informally resolve any grievance.
30
(R. Exh. 92; see also Tr. 931–932.) Marcus added that it was not clear until Vallera’s March 23
e-mail that PFAC wished to bargain about whether the photography department should maintain
the status quo with its operations, and promised to forward that issue to Strazewski for a
response. Finally, Marcus advised Vallera that the College would interpret Vallera’s questions
about who authorized the changes in the photography department as a request for information, 35
and accordingly would forward the request to Pegeen Quinn for processing. (R. Exh. 92.)

e. PFAC files a grievance about faculty class assignments, and the College’s responses

On May 1, PFAC Representative Mary Lou Carroll filed a grievance on behalf of PFAC 40
regarding summer 2012 class assignments. In the grievance, PFAC alleged that the College
“abandoned its obligation to distribute teaching assignments for Summer 2012 classes on the
basis of adjunct faculty” summer availability, summer teaching history, accrued credit hours,
applicable teaching qualifications and summer student enrollment and interest. (GC Exh. 93(a)
(citing the “Appointment/Reappointment” section of the collective-bargaining agreement, past 45
practice, and principles of reasonableness and fairness in support of PFAC’s position).) PFAC
also alleged that the College failed to make an effort to assign alternative classes to affected
JD–12–13
54

PFAC members, and unilaterally adopted new criteria/methods for making faculty class
assignments. (Id.)

f. The College’s May 8, 2012 response to PFAC’s request for effects bargaining
about the prioritization process 5

On May 8, 2012, interim associate provost Leonard Strazewski responded to a request
that Vallera made for the College bargain with PFAC about the prioritization process. On the
issue of effects bargaining, Strazewski maintained that no such bargaining was warranted. In
support of the College’s view, Strazewski asserted that the arbitrator’s decision in employee 10
R.P.’s grievance established that PFAC did not have standing to bargain about the potential
effects that changes proposed through the prioritization process could have on work assignments,
job qualification requirements, and job availability for PFAC members. (See Section B(2)(e),
supra.)
15
g. The College responds to PFAC’s grievance

On May 15, Susan Marcus responded to PFAC’s grievance regarding summer 2012
faculty class assignments. In her e-mail, Marcus asserted that the grievance was untimely
because PFAC did not request an informal meeting in the proper timeframe. Marcus also 20
asserted that the College intended to honor the rationale that the arbitrator set forth in his
February 12 decision (in employee R.P.’s grievance). Specifically, in the College’s view, the
arbitrator’s decision established that “outside of the narrow exceptions under the
Appointment/Reappointment provision of the CBA, a unit member is considered to be an
applicant for employment prior to each semester and does not have standing to question or 25
challenge his future employment at the college.”58 In light of those concerns, Marcus stated that
the College would not be able to hold a step 1 grievance hearing until Carroll sent documentation
showing that she did request an informal meeting with her department chair, and documentation
showing that she/PFAC had standing to pursue the grievance under the collective-bargaining
agreement. (GC Exh. 93(b).) 30

On June 1, Pegeen Quinn wrote to Carroll to follow up on Marcus’ May 1 e-mail to
Carroll about the information that the College required before it could hold a step 1 grievance
meeting. Quinn stated that PFAC still had not provided the College with information showing
that a step 1 meeting was appropriate in light of the concerns that the College raised about 35
timeliness and whether PFAC had standing to bring a grievance about future employment.
Quinn renewed the College’s request that PFAC provide information that addressed those issues.
(GC Exh. 93(c).)

The College modified its position somewhat on June 8, when Quinn notified Carroll that 40
notwithstanding the College’s concerns about whether PFAC’s grievance was timely and
whether PFAC had standing, the College would agree to hold a step 1 grievance meeting.
Accordingly, Quinn asked Carroll to contact her to schedule a meeting, and also asked Carroll to

58
PFAC has not agreed to any changes to the grievance procedure set forth in the collective-
bargaining agreement. (Tr. 313.)
JD–12–13
55

provide the information about timeliness, standing and the substantive merits of the grievance
before the meeting. (GC Exh. 93(d).)

h. June 2011 – the College files a position statement in response to the allegation that it
unilaterally changed the scope of the PFAC bargaining unit 5

On June 11, the College submitted a position statement to the Region in Case 13–CA–
081162. In its position statement, the College rejected PFAC’s claim that through its reliance on
the arbitrator’s decision in employee R.P.’s case, the College unilaterally changed the scope of
the PFAC bargaining unit. As the College explained, it “has never taken the position that PFAC 10
does not represent adjuncts (who have completed at least one semester) in between semesters or
that the scope of the bargaining unit has somehow changed.” Instead, the College maintained
that the arbitrator’s decision simply defined the extent of coverage that the existing collective-
bargaining agreement provided to adjuncts – that is, that adjuncts are only College employees
during the semesters they are actually teaching. (GC Exh. 94(a), pp. 2–3.) 15

i. The College denies PFAC’s grievance about faculty class assignments

On July 2, 2012, Quinn notified Carroll that the College was denying the grievance that
she filed on behalf of PFAC on May 1.59 First, Quinn asserted that PFAC/Carroll lacked 20
standing to bring the grievance because: Carroll did not request an informal meeting with her
department chair; PFAC did not provide information about the individual grieving parties or
underlying facts; and per the arbitrator’s decision in employee R.P.’s case, individual unit
members have no standing to question their future employment. Second, Quinn stated that even
if Carroll and/or PFAC did have standing to file the grievance, Carroll failed to demonstrate that 25
the College was required under the collective-bargaining agreement to assign classes to an
adjunct based on the number of credit hours that they had accrued, or that the College otherwise
violated the collective-bargaining agreement when it made its summer 2012 faculty class
assignments. (GC Exh. 93(e).)
30
3. Discussion and analysis

For the complaint allegations at issue in this section, the Acting General Counsel
essentially takes issue with how the College has applied the reasoning in the arbitrator’s decision
in employee R.P.’s case to other disagreements with PFAC. Specifically, the Acting General 35
Counsel maintains that although the arbitrator’s decision only a narrow issue, the College seized
upon the decision to “redefine its bargaining relationship with the Union to one that essentially
ceases every time the College finishes an academic semester. . . . Flowing from this
interpretation, the College has taken the position that the Union therefore has no right to bargain
over future changes in terms and conditions of employment or the effects of such changes 40
because the Union has no standing under the contract to demand such bargaining. In so doing,
the [College] has unilaterally altered the scope of the bargaining unit and repudiated the
grievance procedure.” (GC Posttrial Br. at 43.)

59
The step one hearing for the grievance was held on June 18, 2012, and addressed not only the
grievance that Carroll filed on May 1 regarding faculty class assignments for summer 2012, but also
another grievance that Carroll filed on May 2. (GC Exh. 93(e).)
JD–12–13
56

In its defense, the College maintains that it is entitled to rely on the arbitrator’s decision
as a binding interpretation of the terms and coverage of the existing collective-bargaining
agreement. The College therefore denies that it acted unilaterally or made any changes to the
contract. (R. Posttrial Br. at 61.) 5

The Acting General Counsel advances two separate legal theories for the complaint
allegations at issue here. First, the Acting General Counsel challenges the College’s actions as
unlawful unilateral changes that violate Section 8(a)(5) and (1) of the Act. “Under the unilateral
change doctrine, an employer’s duty to bargain under the Act includes the obligation to refrain 10
from changing its employees’ terms and conditions of employment without first bargaining to
impasse with the employees’ collective-bargaining representative concerning the contemplated
changes.” Lawrence Livermore National Security, LLC, 357 NLRB No. 23, slip op. at 3 (2011).
The Act prohibits employers from taking unilateral action regarding mandatory subjects of
bargaining such as rates of pay, wages, hours of employment and other conditions of 15
employment. Garden Grove Hospital & Medical Center, 357 NLRB No. 63, slip op. at 1 fn. 4, 5
(2011). Notably, an employer’s regular and longstanding practices that are neither random nor
intermittent become terms and conditions of employment even if those practices are not required
by a collective-bargaining agreement. Id; see also Palm Beach Metro Transportation, LLC, 357
NLRB No. 26, slip op. at 4–5 (2011) (noting that the party asserting the existence of a past 20
practice bears the burden of proof on the issue, and that the evidence must show that the practice
occurred with such regularity and frequency that employees could reasonably expect the practice
to continue or reoccur on a regular and consistent basis), enfd. 459 Fed. Appx. 874 (11
th
Cir.
2012).
25
Second, the Acting General Counsel challenges the Colleges actions as unlawful contract
modifications within the meaning of Section 8(d) of the Act, and in violation of Section 8(a)(5)
and (1) of the Act. Section 8(d) states that “where there is in effect a collective-bargaining
contract . . . no party to such contract shall terminate or modify such contract.” In a contract
modification case, the Acting General Counsel must identify a contractual provision, and then 30
show that the employer modified that contractual provision without the consent of the union.
Where an employer has a “sound arguable basis” for its interpretation of a contract and is not
motivated by union animus or acting in bad faith, the Board ordinarily will not find a violation.
Bath Iron Works Corp., 345 NLRB 499, 501–502 (2005), affd. 475 F.3d 14 (1
st
Cir. 2007).
35
a. Did the College violate the Act on or about March 23, 2012, by unilaterally changing the
scope of the PFAC bargaining unit by only applying the terms of the collective-
bargaining agreement to individuals currently teaching a course?

The Acting General Counsel maintains that the College violated the Act by relying on the 40
arbitrator’s decision to unilaterally redefine the bargaining unit as only including PFAC members
who were currently teaching a course. The Acting General Counsel’s argument fails, however,
because the evidentiary record shows that the College did not change the scope of the bargaining
unit.
45
On March 19, 2012, Vallera requested a meeting about changes that the photography
department allegedly made to its faculty class assignment procedures, and the changes to the
JD–12–13
57

photography department’s curriculum. There is no dispute that on March 23, 2012, the College
(through Susan Marcus) responded to Vallera’s request by advising her to review the arbitrator’s
decision and the dismissal of the allegations in Case 13–CA–045973. If that were the end of the
story, then there would be some merit to the Acting General Counsel’s assertion that the College
changed the scope of the bargaining unit, because through her brief e-mail, Marcus arguably took 5
the position that the College did not need to bargain with PFAC about the issues in the
photography department that Vallera identified. However, the evidentiary record clearly shows
that after reviewing Vallera’s March 23 e-mail, Marcus recognized PFAC’s bargaining request
and notified Vallera on April 10, 2012, that she would forward PFAC’s request to Leonard
Strazewski for a response. (See FOF, Sections c, d, supra.) 10

For similar reasons, I am not persuaded that the College modified the scope of the
bargaining unit when Strazewski e-mailed Vallera on May 8 to refuse PFAC’s request for effects
bargaining about the prioritization process. (See PFAC Posttrial Br. at 52.) As I found when I
analyzed the complaint allegation about that issue, the College’s refusal to engage in effects 15
bargaining on May 8 was lawful because PFAC’s request for such bargaining was premature.
(See Section C(3), supra.) To the extent that Strazewski asserted that the College “lacked
standing” to bargain about the effects of the prioritization process (presumably because of the
arbitrator’s decision and analysis), the College quickly clarified its position on that point when it
affirmed in its position statement that PFAC represents its members at all times (i.e., during and 20
between semesters when they are teaching). (See FOF, Sections f, h, supra.)

Based on those facts, I find that the College did not make any unilateral changes to the
scope of the PFAC bargaining unit. I also find that the College did not modify any contractual
provisions about the scope of the bargaining unit. To the contrary, after sending e-mails that 25
erroneously suggested that the arbitrator’s decision relieved the College of its duty to engage in
effects bargaining, the College corrected its errors and reaffirmed the full extent of PFAC’s right
to bargain. I therefore recommend that the allegations in paragraphs X(a)–(c) of the complaint
be dismissed.
30
b. Did the College violate the Act on or about March 23, 2012 by repudiating the grievance
procedure contained in its collective-bargaining agreement with PFAC?

The Acting General Counsel also takes issue with the College’s reliance on the
arbitrator’s decision when it responded to PFAC’s grievance about faculty class assignments. 35
The evidentiary record does show that the College repeatedly asserted that based on the
arbitrator’s decision, PFAC lacked standing to pursue a grievance about future teaching
assignments. The record also shows, however, that notwithstanding its questions about PFAC’s
standing, the College ultimately did process PFAC’s grievance and respond to it on the merits.
(FOF, Sections f, h, supra.) 40

After considering the applicable case law, I find that the College did not repudiate the
grievance procedure as alleged in the complaint. The Board’s decision in Velan Valve Corp. is
instructive. In that case, the Board considered whether an employer’s refusal to arbitrate certain
untimely grievances violated Section 8(a)(5) and (1) of the Act, and set forth the following 45
principles:

JD–12–13
58

It is well settled that not every employer refusal to arbitrate violates Section 8(a)(5). Mid-
American Milling Co., 282 NLRB 926 (1987). Where there is a refusal to arbitrate all
grievances, or where the refusal to arbitrate a particular class of grievances amounts to
a wholesale repudiation of the contract, a violation will be found. See Indiana &
Michigan Electric Co., 284 NLRB 53 (1987). Conversely, if the refusal to arbitrate is 5
limited to a single grievance or specifically defined, ‘‘narrow class’’ of grievances,
Section 8(a)(5) is not violated. GAF Corp., 265 NLRB 1361, 1365 (1982); Mid-American
Milling Co., supra. The relevant inquiry in determining whether an employer’s refusal to
arbitrate violates the Act is whether the employer, by its refusal, has thereby unilaterally
modified terms and conditions of employment during the contract term. 10

Velan Valve Corp., 316 NLRB 1273, 1274 (1995). Applying that standard, the Board held that
the employer did not violate the Act because its “refusal to arbitrate on timeliness grounds was
not tantamount to a wholesale repudiation of the contractual arbitration provision.” Id.; compare
Exxon Chemical Co., 340 NLRB 357, 359 (2003) (employer’s refusal to arbitrate a wide range of 15
contractual issues violated the Act because the employer’s refusal amounted to a wholesale
repudiation of the collective-bargaining agreement), enfd. 386 F.3d 1160 (D.C. Cir. 2004).

As with the employer in Velan Valve, in this case the College did not engage in a
wholesale repudiation of the grievance procedure. Instead, the College questioned PFAC’s 20
standing to pursue a narrow class of grievances – namely, grievances that addressed faculty class
assignments and thus were arguably covered by the arbitrator’s decision and rationale. Thus,
consistent with Velan Valve, the College did not violate Section 8(a)(5) of the Act.

Nor, for that matter, did the College violate Section 8(d) of the Act. At a minimum, the 25
arbitrator’s decision supplied a sound arguable basis for the College’s position that PFAC did not
have standing to pursue its grievance about faculty class assignments. Since the Acting General
Counsel did not show that the College acted with antiunion animus or in bad faith when it
invoked the arbitrator’s decision, the College acted lawfully when it relied on the arbitrator’s
decision in its responses to PFAC’s grievance. I therefore recommend that the allegation in 30
paragraph X(d) of the complaint be dismissed.

H. Investigation of Vallera for Misconduct

1. Complaint allegations 35

The complaint alleges that because Diana Vallera engaged in union and protected
concerted activities, and because she testified in Case 30–CA–018888, and cooperated in the
investigation (including providing affidavits to the Board) in Cases 13–CA–073486, 13–CA–
076794, 13–CA–078080 and 13–CA–081162, in April or May 2012, the College began 40
investigating Diana Vallera for alleged misconduct concerning claims about employees of the
College’s Office of General Counsel. (GC Exh. 1(ff), pars. VI(e)–(f) (alleging violations of
Section 8(a)(3), (4) and (1) of the Act).)

The complaint also alleges that because Diana Vallera engaged in union and protected 45
concerted activities, and because she testified in Case 30–CA–018888, and cooperated in the
investigation (including providing affidavits to the Board) in Cases 13–CA–073486, 13–CA–
JD–12–13
59

076794, 13–CA–078080 and 13–CA–081162, on or about May 14, 2012, the College issued
Diana Vallera a notice of “Complaint of Misconduct” concerning claims about employees of the
College’s Office of General Counsel. (GC Exh. 1(ff), pars. VI(e)–(f) (alleging violations of
Section 8(a)(3), (4) and (1) of the Act).)
5
And, the complaint alleges that since on or about June 5, 2012, the College has failed and
refused to provide PFAC with information that PFAC requested on May 17, 2012, concerning
the nature of and basis for the College’s investigation of Diana Vallera for misconduct. (GC
Exh. 1(ff), pars. VIII(c), (g) (alleging violation of Section 8(a)(5) and (1)).)
10
2. Findings of fact

a. Alleged surveillance incident at Vallera’s home

On January 30, 2012, Diana Vallera was teaching when she received a phone call from 15
her nanny, who reported seeing a man who appeared to be taking pictures outside of Vallera’s
home (as well as a woman who remained in a car parked in front of the home). Vallera went to
her home, and after speaking with her nanny, contacted the police to file a police report. (Tr.
181–182; R. Exh. 77.)
20
During the conversation with the police officer who responded to Vallera’s home,
Vallera’s nanny described the man that she encountered. The nanny’s description prompted
Vallera to remark that the description sounded like someone from the College’s general
counsel’s office (employee P.D.). Accordingly, the police officer asked Vallera to obtain a
photograph of P.D. and show it to her nanny to see if she could identify P.D. as the man who was 25
at Vallera’s home. Vallera obtained a photograph of P.D. from PFAC’s steering committee, and
Vallera’s nanny reviewed the photograph and identified P.D. as the man that she saw.60 After a
couple of days, the police officer notified Vallera that the incident was a civil matter and not a
criminal matter. (Tr. 183–184, 383–385, 387–388; R. Exh. 77.)
30
b. Vallera’s union activities, including references to alleged surveillance

On February 6–8, the Acting General Counsel, the College and PFAC litigated a trial in
Case 30–CA–018888. (GC Exh. 7.) Vallera testified as a witness for the Acting General
Counsel/PFAC during the trial, and also sat at counsels’ table during the trial. (Tr. 189; GC Exh. 35
7.)

On March 2, Vallera gave a speech at the National Education Association Higher
Education Conference, held in Chicago. During her speech, Vallera spoke about “the crisis
throughout the country around higher education specifically with the exploitation of part-time 40
faculty,” and observed that the crisis provided an opportunity for unions to organize. To
illustrate her point, Vallera described PFAC’s and her experience at the College, and mentioned

60
I emphasize here that I take no position on whether Vallera’s nanny was correct when she identified
employee P.D. as the man who she saw in front of Vallera’s home. I have only set forth these facts to
outline the basis for Vallera’s belief that one of the College’s agents was taking pictures at her home.
JD–12–13
60

the police report that was filed about the January 30, 2012 surveillance at her home. (Tr. 186–
188, 370–372.)

On April 14, Vallera participated in a PFAC membership meeting attended by
approximately 75 PFAC members. At the meeting, PFAC grievance chair Susan Tyma gave an 5
update about the recent trial before the Board in Case 30–CA–018888, potential new charges that
PFAC might file, and surveillance of Vallera’s home. Vallera advised the meeting participants
that she notified the IEA about the surveillance issue, and that the IEA was looking into the
matter. (Tr. 188–190.) Meeting attendees also discussed having a vote of “no confidence”
against the College administration. In connection with that discussion, PFAC later sent an e-mail 10
to its members that asked them to register their opinion on a vote of “no confidence.” The e-mail
cited various reasons for a no confidence vote, including the assertion that “[t]his administration
has attempted to prevent the union and its leadership from communicating with the wider college
community, and has attempted surveillance of the union leadership.” (GC Exh. 74; see also Tr.
190–192.) 15

Finally, between January 30 and May 16, 2012, PFAC filed charges with the Board in
Cases 13–CA–073486, 076794, 078080 and 081162 that related to Vallera’s activities as PFAC’s
President. (GC Exhs. 1(a), (e), (g), (i), (m) and (s) (original and amended charges).)
20
c. Complaint of misconduct filed against Vallera

On April 19, Annice Kelly, the College’s general counsel, sent an e-mail to Vice
President for Human Resources Ellen Krutz to submit a formal complaint against Vallera. Kelly
stated as follows in her e-mail: 25

This morning I was informed by Louise [Love] that Diana Vallera has been telling people
that me/my office has been conducting surveillance of her/her nanny. She has told
people that she has filed a police report with the Evanston police.
30
A couple of months ago I did receive a phone call from someone claiming to be an
Evanston police officer asking me vague questions about being at some unidentified
person’s house in Evanston and a complaint being made. At the time I was confused by
the call and thought it very odd. It did not make sense to me that if they had my license
plate number (which the officer claimed, but then when I asked him what it was he could 35
not give it to me) then why were they calling me at work and not at home. How did he
connect my car to my work? It was very odd. It was a short conversation and in the end
he said he would get back to me but never did.

Now hearing what Louise has said, this phone call makes sense and it gives credence that 40
Diana is actually saying these things. These untrue statements have the potential to be
career ending as it puts my law license in jeopardy.

I would like this matter investigated. Consider this a formal complaint against Diana
Vallera for making false, damaging statements about me/my office by alleging we are 45
involved in criminal activity. I would like Columbia to investigate this as I believe it is
misconduct. Of course, Columbia should follow its policies and the CBA in conducting
JD–12–13
61

the investigation. Given my involvement, and that of my office, I think it appropriate that
the OGC [recuse] itself from the investigation. If you feel the need to seek legal counsel
during the course of the investigation, that you would normally seek from the OGC, I
think you should seek it. I would recommend using an attorney who has not represented
Columbia or that the OGC is not associated with so that we avoid all [appearance] of 5
undue influence.

(GC Exh. 75; see also CP Exh. 4, p. 25 (noting that Louise Love learned of this issue from her
husband, who had learned of the incident from a part-time faculty member).) Krutz forwarded
Kelly’s complaint to Louise Love for processing, since the office of Academic Affairs handles 10
faculty personnel matters. (CP Exh. 4, p. 22.)

d. The College learns of additional public statements
about alleged surveillance at Vallera’s home
15
The following day, Robert Koverman, the College’s associate vice president for Campus
Safety and Security, notified Love and three other College administrators that PFAC’s request
for a “no confidence” vote had been posted on a website for Occupy Columbia.61 (GC Exh. 100
(including a copy of PFAC’s request for a no confidence vote and the allegation that the College
had engaged in surveillance of union leadership).) PFAC was not involved in placing the e-mail 20
on the Occupy Columbia website. (Tr. 240.)

On April 26, PFAC filed an amended charge in Case 13–CA–076794 to allege (among
other things) that the College violated the Act by creating the appearance of surveillance. (Tr.
324; GC Exh. 84(b).) Two days later, Vallera and two full-time College faculty members 25
attended an American Association of University Professors (AAUP) meeting. At the meeting,
Vallera spoke about what was happening at Columbia College, and mentioned the police report
that she filed concerning the possible surveillance at her home. (Tr. 206–208, 382.) After
Vallera spoke, one of the full-time professors from the College who was at the meeting told
Vallera that her remarks about what was happening at her home were very serious, and added 30
that if attorneys did come to Vallera’s home, something had to be done about it. (Tr. 382–383.)

e. The College begins investigating Vallera for misconduct

Love assigned interim associate provost Leonard Strazewski and associate vice president 35
for Academic Affairs Susan Marcus to investigate Kelly’s complaint against Vallera. (Tr. 495,
1086.) Accordingly, on May 14, Strazewski sent Vallera an e-mail that stated as follows:

Dear Ms. Vallera:
40
A complaint of misconduct has been made against you by [the College’s] office of the
General Counsel. The Office of the Provost/Academic Affairs is conducting a neutral

61
In December 2011, PFAC joined a coalition with students, faculty and staff to protest various
conditions at the College. The protest effort was associated with Occupy Columbia, a branch of the
national Occupy Movement. (See Tr. 166–170, 1109–1110; GC Exh. 69.)
JD–12–13
62

and impartial investigation. You may have union representation at the investigatory
meeting.

We would like to proceed within ten (10) days following the re-opening of the College
after the closing for the NATO summit May 17–22. Please reply with your available 5
dates.

(GC Exh. 77.)

f. PFAC information request about the investigation 10

Vallera notified IEA organizer Bill Silver about Strazewski’s e-mail and the complaint
of misconduct. Acting on Vallera’s behalf, on May 17, Silver sent Strazewski an information
request that sought the following information: (1) a copy of the complaint against Vallera; (2) all
documentation used in preparing, or offered in support of, the allegations in the complaint; 15
(3) the steps that Strazewski’s office has taken or will take to ensure that the investigation is
neutral and impartial; (4) a copy of the College policy under which the complaint was initiated
and processed; (5) the names of those initiating the complaint and an explanation of why the
complaint was initiated by an office instead of individuals; (6) an explanation for why the
investigation was assigned to the Office of the Provost/Academic Affairs instead of Vallera’s 20
supervisor, and when the assignment was made; and (7) the total number of complaints that the
College’s office of general counsel has issued against employees for misconduct, including the
names of the employees who were charged with misconduct and information about how each
such complaint was ultimately resolved. Silver asked Strazewski to provide a copy of the
complaint within 48 hours, and to provide the remaining information within ten days. (Tr. 422–25
424; GC Exh. 78.)

Hearing no response from the College, Silver renewed his request for information in a
followup e-mail to Strazewski on May 30. (GC Exh. 79.) Strazewski responded later that same
day with a brief e-mail that stated that the charge against Vallera “was filed by the Columbia 30
College Chicago general counsel against Diana Vallera for making ‘false, damaging statements’
about the general counsel and her office by alleging the office was involved in criminal activity
such as personal surveillance.” Strazewski proposed that he and Vallera meet on June 5, 6 or 7
to discuss the facts of the complaint. (GC Exh. 80.)
35
On June 4, Silver acknowledged receiving Strazewski’s May 30 e-mail and request for a
meeting, but reiterated the union’s request for a copy of the full complaint before any such
meeting to ensure that the meeting would be as productive as possible, and to avoid unnecessary
delays that would result if the union required time to review the complaint. Silver also stated
that the union still needed the additional information that it requested, because that information 40
was necessary for the union to evaluate whether Vallera was being singled out and treated in a
discriminatory manner. (GC Exh. 81.) Silver subsequently notified Strazewski that Vallera
would be available to meet on June 6. (GC Exh. 82.)

On June 5, Strazewski agreed to meet on June 6, subject to Vallera confirming the 45
proposed meeting date and time. Regarding the union’s information requests, Strazewski
responded that “this is a confidential inquiry into a complaint filed by the general counsel
JD–12–13
63

regarding a matter that does not appear to be directly related to union activity, bargaining or the
mandatory subjects of bargaining, so I have not responded directly to PFAC inquiries. I expect
my questions and our conversation will be between us though I understand you have Weingarten
rights to union representation. I expect to have a non-participating note-taker present.” (GC
Exh. 83.) Strazewski did not provide any information in response to PFAC’s information 5
requests about the misconduct investigation. (Tr. 226, 427, 1108, 1171.)

g. Strazewski interviews Vallera and completes investigation

Vallera and Silver finally met with Strazewski on June 6 (with a notetaker provided by 10
the College present). (Tr. 202; CP Exh. 4, p. 8.) Early in the meeting, Silver asked Strazewski to
explain what policy Vallera violated. Strazewski responded that the misconduct charge was
based on public remarks that Vallera made about the alleged surveillance at her home.
Strazewski added that there was no written policy that applied, other than a general faculty
misconduct policy for which there was no formal procedure. (Tr. 205; CP Exh. 4, p. 8.) Silver 15
also asked what evidence Strazewski was relying on in the investigation, and Strazewski
identified the remarks that Vallera made at the April 28 AAUP meeting (as reported by full-time
faculty members who attended that meeting), a redacted copy of the police report that Vallera
filed, and statements that PFAC members and representatives made at PFAC meetings and in
written material about the alleged surveillance at Vallera’s home. (Tr. 203, 430, 1091–1093, 20
1095; CP Exh. 4, p. 9; see also CP Exh. 3 (Facebook posting made by a PFAC member); R. Exh.
78 and Tr. 331 (PFAC steering committee newsletters and communications that were not
published by Vallera).) Silver asked for a copy of the evidence that Strazewski identified, but
Strazewski refused. (Tr. 204.)
25
Strazewski then asked Vallera questions about what happened at her home on January 30,
and how employee P.D. was identified as the person who was at Vallera’s home. In connection
with those questions, Strazewski asserted that if the College determined that no one from the
College’s office of general counsel was at Vallera’s home on January 30, then Vallera would be
disciplined. (Tr. 204; CP Exh. 4, p. 9.) Strazewski also asked for: a copy of the charge that 30
PFAC filed with the Board regarding the alleged surveillance; an unredacted copy of the police
report that Vallera filed; a copy of the photograph that Vallera showed her nanny; and the
opportunity to interview Vallera’s nanny. (Tr. 205, 434; CP Exh. 4, pp. 9–10.)

On June 11, Silver provided Strazewski with a copy of the Board charge that included the 35
alleged surveillance at Vallera’s home. (GC Exhs. 84(a)–(c).) Silver also expressed the union’s
concerns about the ongoing investigation of Vallera for misconduct. First, Silver asserted that
the College was using the investigation process to retaliate against Vallera for alleging that the
College engaged in unlawful surveillance in the amended charge that PFAC filed with the Board
in Case 13–CA–076794. Second, Silver objected to the fact that the College was not conducting 40
the investigation under either of its existing policies related to employee conduct, and instead
was following an unwritten procedure that did not give Vallera notice of any rule violation and
relied on second-hand reports about union meetings as evidence for the investigation. And third,
Silver objected to Strazewski’s efforts to determine whether Vallera’s nanny’s identification of
employee P.D. was true or false, because that inquiry was “beyond the ability or scope” of 45
Strazewski’s investigation. In light of those concerns, Silver urged Strazewski to drop the
investigation of Vallera. (GC Exh. 84(a).)
JD–12–13
64

Meanwhile, Strazewski asked Vallera to provide him with additional information,
including the name of the employee who may have been conducting surveillance of Vallera’s
home, and/or the photograph that Vallera’s nanny reviewed to make her identification. (GC Exh.
85(a).) When Vallera complied and advised Strazewski that her nanny identified employee P.D. 5
as the man who was taking pictures at Vallera’s home, on June 25, 2012, Strazewski requested a
followup interview with Vallera to address “some significant questions and concerns.” (GC Exh.
86.) Silver objected to Strazewski’s request for another interview, citing the union’s concerns
about the investigation and how it was being conducted. Strazewski did not respond to Silver’s
concerns, and thus no followup meeting occurred. (Tr. 230, 448; GC Exhs. 87(a), 88; see also 10
GC Exh. 87(b).)

h. Strazewski and Marcus recommend that Vallera be disciplined for misconduct

On August 9, Strazewski and Marcus submitted a report to Love with their findings and 15
recommendations regarding the complaint of misconduct against Vallera. In the report, Marcus
and Strazewski explained that they “reviewed PFAC publications, including member newsletters
and public postings on the union Facebook pages. The publications documented that the
accusation of surveillance had been communicated widely and was accepted as accurate by
union members who had repeated the claim online, citing by number a police report filed with 20
the Evanston Police in late January.” Marcus and Strazewski interviewed personnel from the
College’s general counsel and human resources offices (including employee P.D.),62 and found
no evidence that the College was involved in any surveillance at Vallera’s home.

By contrast, Marcus and Strazewski found Vallera to be “evasive and difficult” during 25
the investigation. Specifically, Marcus and Strazewski described Vallera’s conduct during the
investigation as follows:

Vallera denied making the surveillance accusation until presented with documents to the
contrary.63 Vallera stated that there was an open police investigation; the police report is 30
to the contrary. Vallera has failed to respond to a request for a follow-up interview
subsequent to her email identifying [employee P.D.], thereby refusing to participate with
this investigation through to its conclusion. Vallera failed to file a complaint with the
College about the alleged surveillance, nor did she ask the College to investigate her
allegations. Vallera did not explain why she would not provide access to her nanny or 35
the photograph which she had shown to her nanny and claimed was of [employee P.D.].

Ultimately, Marcus and Strazewski found that Vallera committed misconduct by: filing a false
police report; widely publishing the false accusations; falsely stating that there was an ongoing

62
Strazewski interviewed employee P.D. and credited employee P.D.’s explanation that he was
working in his office when the alleged surveillance incident occurred at Vallera’s home on January 30.
(Tr. 1099, 1102-1103 (noting that employee P.D. provided Strazewski with work product that he
completed on January 30).)
63
Vallera maintained that her nanny (rather than Vallera) was the one who filed the police report,
because Vallera’s nanny was the one who had first-hand knowledge about the incident. (Tr. 224, 1101–
1102; GC Exh. 85(b); see also Tr. 1175, 1186–1187 (Strazewski agreed that Vallera did not file the police
report.)
JD–12–13
65

police investigation; refusing to cooperate with the Provost’s office in its investigation of the
misconduct charge; and giving false statements at the investigation interview. Accordingly,
Marcus and Strazewski recommended that Vallera be censured for her misconduct and
suspended from employment at the College for one semester (with further instances of this
misconduct being cause for termination). (GC Exh. 101; see also Tr. 1104–1106.) Love agreed 5
with the recommended discipline because she agreed that Vallera made a false charge of
surveillance that was promulgated verbally and in writing.64 (Tr. 495–496.)

i. Love notifies Vallera that disciplinary action is forthcoming
10
On August 13, Love notified Vallera that the investigation of the complaint of
misconduct was complete, and that Love wished to meet with her on August 17 pursuant to the
collective-bargaining agreement to inform Vallera of the contemplated disciplinary action and
the reason for it. (GC Exh. 89(a).) Love later postponed the meeting to August 24, and then
canceled that meeting without scheduling an alternate meeting date. (GC Exhs. 89(b)–(c); see 15
also Tr. 233, 437.)

3. Discussion and analysis

a. Did the College violate the Act by investigating Vallera for misconduct, or by issuing a notice 20
to Vallera on May 14, 2012 that she was being investigated?

As previously noted, the Acting General Counsel contends that the College violated
Section 8(a)(3), (4) and (1) of the Act when it began investigating Vallera for misconduct in
April 2012, and when it issued a notice to Vallera on May 14, 2012 that she was being 25
investigated. Since there is no dispute that the College took those steps because of the
statements that Vallera and other PFAC members were making about the alleged surveillance
that took place at Vallera’s home, the “single motive” line of cases serves as the relevant case
law for my analysis.
30
In a single motive case where an employer is charged with discriminating against an
employee because of the employee’s protected concerted or union activities, the only issue is
whether the employee’s conduct lost the protection of the Act because the conduct crossed over
the line separating protected and unprotected activity. Phoenix Transit System, 337 NLRB 510,
510 (2002), enfd. 63 Fed. Appx. 524 (D.C. Cir. 2003). Specifically, when an employee is 35
disciplined or discharged for conduct that is part of the res gestae of protected concerted
activities, the pertinent question is whether the conduct is sufficiently egregious to remove it
from the protection of the Act. Aluminum Co. of America, 338 NLRB 20 (2002). In making this
determination, the Board examines the following factors: (1) the place of the discussion; (2) the
subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the 40

64
During trial, Love testified that Vallera wrote at least one of the documents that asserted that
someone from the College conducted surveillance at her home. However, when Love was asked to
identify such a document in the materials that the College provided pursuant to subpoena, she was not
able to do so. (Tr. 496, 503–506.) Love also could not explain why she concluded that Vallera made a
“false” police report, as opposed to a report that Vallera honestly believed but was erroneous (e.g.,
because Vallera’s nanny mistakenly, but in good faith, identified employee P.D. as the man she saw
taking pictures at Vallera’s home). (Tr. 508–509.)
JD–12–13
66

outburst was, in any way, provoked by an employer’s unfair labor practice. Fresenius USA
Manufacturing, 358 NLRB No. 138, slip op. at 4 (2012) (citing Atlantic Steel Co., 245 NLRB
814, 816 (1979)).

In this case, the Acting General Counsel did not assert that the College unlawfully 5
disciplined Vallera for engaging in protected activities (nor could it, since the College has not, as
of yet, imposed any discipline). Instead, the Acting General Counsel asserted that the College
ran afoul of the Act merely by investigating Vallera for misconduct, and by notifying Vallera of
the investigation. Those claims miss the mark. The Board’s single motive cases establish that an
employer may discipline or discharge an employee if the employee engages in conduct that could 10
have qualified as protected activity, but was sufficiently egregious to remove it from the Act’s
protection. See Stanford Hotel, 344 NLRB 558 (2005) (citing Atlantic Steel Co., 245 NLRB at
816). Given that an employer may discipline an employee under those circumstances, it stands
to reason that an employer also may investigate whether an employee should be disciplined for
engaging in activity that lost the protection of the Act, assuming, of course, that the investigation 15
is done for legitimate reasons. See Fresenius USA Manufacturing, 358 NLRB No. 138, slip op.
at 3 (2012) (noting that the Board “has recognized that employers have a legitimate business
interest in investigating facially valid complaints of employee misconduct”); Bridgestone
Firestone South Carolina, 350 NLRB 526, 528 (2007) (interrogation of employee was lawful
where it occurred as part of a legitimate investigation into whether the employee engaged in 20
misconduct). Indeed, the employer’s right to conduct an investigation under these circumstances
is essential to the employer’s ability to make an informed decision about whether the employee’s
conduct warrants disciplinary action.

With those principles in mind, I find that the College’s decisions to investigate Vallera 25
for misconduct and issue a notice to Vallera about the investigation were legitimate and lawful.
The College received a complaint from its general counsel’s office that raised two issues:
(a) whether Vallera was maliciously spreading false information that an attorney from the
general counsel’s office had conducted surveillance at her home; and (b) whether, in the
alternative, someone from the general counsel’s office in fact did conduct surveillance at 30
Vallera’s home. The College understandably wished to get to the bottom of both of those issues,
and it was therefore reasonable for the College to investigate the complaint against Vallera, and
to notify Vallera of the investigation so she could present her side of the story. I therefore
recommend that the allegations in paragraphs VI(c)–(d) of the complaint be dismissed.
35
b. Did the College unlawfully fail and refuse to respond
to PFAC’s May 17, 2012 information request?

An employer’s duty to bargain includes a general duty to provide information needed by
the bargaining representative in contract negotiations and administration. Generally, information 40
concerning wages, hours, and other terms and conditions of employment for unit employees is
presumptively relevant to the union’s role as exclusive collective-bargaining representative. By
contrast, information concerning extra-unit employees is not presumptively relevant, and thus
relevance must be shown. A-1 Door & Building Solutions, 356 NLRB No. 76, slip op. at 2
(2011). The burden to show relevance is not exceptionally heavy, as the Board uses a broad, 45
discovery-type standard in determining relevance in information requests. Id.

JD–12–13
67

If a dispute about an information request centers around union requests for relevant but
assertedly confidential information, the Board balances the union’s need for the information
against any legitimate and substantial confidentiality interests established by the employer. The
party asserting confidentiality has the burden of proving that such interests exist and that they
outweigh its bargaining partner’s need for the information. Further, a party refusing to supply 5
information on confidentiality grounds has a duty to seek an accommodation that would meet the
needs of both parties. A-1 Door & Building Solutions, 356 NLRB No. 76, slip op. at 3; National
Steel Corp., 335 NLRB at 748.

As described in the findings of fact, on May 17, 2012, Vallera’s union representative sent 10
an information request to the College to request (among other things): a copy of the complaint
against Vallera; any supporting documentation associated with the complaint; information about
the steps that the College would take to ensure that the investigation was neutral and impartial; a
copy of the policy under which the complaint was initiated and processed; the names of the
people initiating the complaint; and information about any previous complaints that the College’s 15
office of general counsel initiated, and how those complaints were resolved. In response,
Strazewski provided his own paraphrased summary of the complaint, but did not provide PFAC
with any other information in response to the information request because the College
maintained that the investigation was confidential and did not appear to be directly related to
union activities (though, contrary to that claim, he recognized Vallera’s right to have a union 20
representative assist her during the investigation). (FOF, Section f, supra.)

Based on those facts, it is clear that, as alleged, since June 5, 2012 the College unlawfully
failed and refused to provide PFAC with the information that it sought in its May 17, 2012
information request. Through its information request, PFAC sought information that was 25
directly relevant to its role as the collective-bargaining representative of part-time faculty
members (including Vallera), particularly given that Vallera faced an investigation that could
lead to disciplinary action. See Alcan Rolled Products, 358 NLRB No. 11, slip op. at 6 (2012)
(finding that a union’s request for the names of coworkers who complained about an employee
was presumptively relevant to the union’s efforts to represent the employee in a grievance 30
proceeding). Moreover, although Strazewski maintained that he could not provide the requested
information because of confidentiality concerns, that generalized concern fell short because “it is
well established that an employer may not avoid its obligation to provide a union with requested
information that is relevant to bargaining simply by asserting a confidentiality interest in the
information.” National Steel Corp., 335 NLRB at 748. The College made no effort to work out 35
an accommodation that would provide PFAC with the information that it needed while still
addressing the College’s concerns about confidentiality, and thus the College did not fulfill its
obligations under the Act.65

65
In its brief, the College correctly observes that the Board, after balancing the interest of the union
in receiving relevant information to its representational duties against the confidentiality interests of the
employer, at times has permitted the employer to withhold certain information to preserve confidentiality.
(R. Posttrial Br. at 72–73 (citing, e.g., Postal Service, 306 NLRB 474, 477 (1992), a case in which the
Board, after balancing the competing interests, agreed that the employer permissibly withheld information
that would have revealed the identity of confidential informants who were involved in a criminal
investigation).) In this case, the College flatly refused to work out any type of accommodation regarding
its confidentiality concerns, and as a result unlawfully withheld information that would have been
responsive to PFAC’s information request and could have been disclosed without jeopardizing any
JD–12–13
68

Accordingly, I find that as alleged in paragraph VIII(c) of the complaint, the College
violated Section 8(a)(5) and (1) of the Act by, since June 5, 2012, failing and refusing to respond
to PFAC’s May 17, 2012 information request.
5
c. Did the College violate the Act by notifying Vallera on August 13, 2012 that disciplinary
action was forthcoming based on the investigation of alleged misconduct?

As previously noted, the Acting General Counsel alleged that the College violated the
Act by investigating Vallera for alleged misconduct, and by notifying Vallera of that 10
investigation. The Acting General Counsel did not allege that the College violated the Act when
it later (on August 13, 2012) notified Vallera that based on its investigation, the College wanted
Vallera to attend a meeting to advise her of contemplated disciplinary action and the reasons for
that action.
15
It is well settled that the Board may find and remedy a violation even in the absence of a
specified allegation in the complaint if the issue is closely connected to the subject matter of the
complaint and has been fully litigated. See Pergament United Sales, 296 NLRB 333, 335
(1989), enfd. 920 F.2d 130 (2d Cir. 1990)). That standard has been met here, since: (a) the
parties fully litigated the entire investigation of Vallera by, among other things, presenting 20
extensive evidence about the investigation, the rationale for the discipline that Strazewski and
Marcus recommended, and Love’s decision to accept their recommendation and contact Vallera
to schedule a meeting about the discipline; and (b) the College’s decision to contact Vallera
about the contemplated discipline is closely related to its decision to investigate Vallera for
misconduct. I therefore will consider whether the College violated Section 8(a)(3), (4) and (1) of 25
the Act when it notified Vallera on August 13, 2012 that she needed to attend a meeting about
the discipline that the College was contemplating based on its investigation.

Since the College sought to discipline Vallera based on its view that Vallera’s statements
about surveillance at her home were false and therefore unprotected, the pertinent question is 30
whether Vallera’s statements were sufficiently egregious to remove them from the protection of
the Act. Aluminum Co. of America, 338 NLRB 20 (2002). In making this determination, the
Board examines the following factors: (1) the place of the discussion; (2) the subject matter of
the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in
any way, provoked by an employer’s unfair labor practice. Fresenius USA Manufacturing, 358 35
NLRB No. 138, slip op. at 4 (citing Atlantic Steel Co., 245 NLRB at 816).

To the extent that Vallera commented publicly about the alleged surveillance at her
home, she did so at one PFAC meeting, and two conferences/meetings with professional
colleagues. She also limited her discussion to stating that a police report had been filed 40
regarding surveillance at her home, and that the IEA was looking into the issue. Since none of
those actions are egregious, both factors one and two of the Atlantic Steel framework support
Vallera. The fourth factor, whether Vallera’s statements were provoked, is neutral, since
Vallera’s remarks were not really an outburst, and since (on the other hand) she did not make her
remarks in the heat of the moment in response to an unfair labor practice. 45

legitimate confidentiality concerns.
JD–12–13
69

Regarding the third factor, the College took the position at the conclusion of its
investigation that Vallera should be disciplined because she filed a false police report and then
widely publicized those false allegations to various College personnel.66 However, even if one
assumes, arguendo, that the College was correct in finding that its general counsel’s office did 5
not engage in surveillance at Vallera’s home, it does not follow that Vallera’s statements to the
contrary were so egregious as to lose the protection of the Act. Indeed, as the Board has held,
false and inaccurate employee statements are protected under the Act unless they are knowingly
false or otherwise are malicious. Central Security Services, 315 NLRB 239, 243 (1994). Since
the College did not demonstrate (through its investigation or otherwise) that Vallera’s statements 10
about the surveillance at her home were knowingly false (as opposed to, for example, inaccurate,
but made in good faith), the nature of Vallera’s statements weighs in Vallera’s favor.

Considering the Atlantic Steel factors as a whole, I find that Vallera’s statements about
the alleged surveillance at her home were not sufficiently egregious to remove them from the 15
protection of the Act. Vallera had a right under the Act to voice her good-faith concern that
College personnel were responsible for the alleged surveillance, even if her suspicions were in
fact incorrect. Since Vallera’s statements about the surveillance incident were protected under
the Act, it was unlawful for the College to notify Vallera that it was contemplating disciplinary
action against her based on her statements. 20

I therefore find that the College violated Section 8(a)(3) and (1) of the Act when it
notified Vallera on August 13, 2012 that it was contemplating disciplinary action against her
because of her protected statements about alleged surveillance at her home.67
25
I. Overall Bad-Faith Bargaining

1. Complaint allegations

The complaint alleges that by its overall conduct, Respondent has failed and refused to 30
bargain in good faith with PFAC as the exclusive collective-bargaining representative of the
bargaining unit. (GC Exh. 1(ff), par. XII (alleging violation of Section 8(a)(5) and (1).)

66
To be sure, the College also based its decision to discipline Vallera on its findings that Vallera
falsely stated that there was an ongoing police investigation, refused to cooperate with the Provost’s
office in its investigation of the misconduct charge, and gave false statements at the investigation
interview. As an initial matter, I would be remiss if I did not point out that some, if not all, of this
additional “misconduct” is rather dubious, insofar as: (a) Vallera’ s alleged refusal to cooperate arose after
the College unlawfully refused to provide Vallera and her representative with information about the
investigation; and (b) some of the allegedly false statements were essentially disagreements between
Strazewski and Vallera about semantics (such as whether Vallera or her nanny “filed” the police report).
More important, the additional reasons for the College’s decision to discipline Vallera do not
change the result here. Simply put, even if the additional misconduct that the College identified is valid,
the fact remains that the College explicitly identified Vallera’s protected statements about surveillance as
one of its reasons for planning to discipline Vallera. See FOF, Section h, supra.
67
I do not find that the College sought to discipline Vallera based on her participation in the trial in
Case 30–CA–018888, or because she cooperated with the Board in 13–CA–073486, 076794, 078080 and
081162. Accordingly, I do not find that the College violated Section 8(a)(4) of the Act.
JD–12–13
70

2. Findings of fact

In support of its allegation that the College engaged in overall bad-faith bargaining, the
Acting General Counsel primarily asserted that the College: refused to meet and bargain with 5
PFAC face to face; refused to provide PFAC with responses to PFAC’s information requests in a
timely manner; refused to bargain with PFAC about the effects of changes that the College was
making to working conditions; unilaterally changed the scope of the bargaining unit; and
repudiated the grievance procedure set forth in the collective-bargaining agreement. (GC
Posttrial Br. at 4.) 10

My findings of fact and analysis concerning the alleged misconduct that the Acting
General Counsel cited are set forth in other sections of this decision. In those sections, I found
that the College did not violate the Act when it refused to bargain with PFAC about the effects of
the College’s prioritization process. I also found that the College did not unilaterally change the 15
scope of the bargaining unit or repudiate the grievance procedure. (See Sections C and G,
supra.) The Acting General Counsel’s overall bad faith bargaining allegation must therefore
succeed or fail based on the remaining misconduct that the Acting General Counsel identified,
along with any additional facts about the College’s conduct at and away from the bargaining
table. With that limitation in mind, I provide the following factual timeline: 20

January 2010 The College and PFAC begin negotiations for a successor
collective bargaining agreement. Javier Ramirez, a mediator from
the Federal Mediation and Conciliation Service, facilitates
negotiations. (Section A(2)(a), supra.) 25

October 2010 The College submits a contract proposal that, inter alia, asks
PFAC to waive its right to effects bargaining. PFAC objects, in
part because it believes the proposal is retaliatory given that the
parties just settled a case in which PFAC alleged that the College 30
failed to engage in effects bargaining. The College admits that it
added the effects bargaining waiver language because it does not
want a dispute about effects bargaining to arise in the future.
(Section A(2)(b).)
35
Early 2011 The parties continue negotiations and identify several areas of the
contract that are not in dispute (NIDs), and therefore can be set
aside at least until the parties have a complete working proposal in
place. (Section A(2)(c).)
40
Summer 2011 The parties begin using a small group format for negotiations.
Leonard Strazewski joins the College’s bargaining team, in
preparation for replacing Louise Love as the lead negotiator.
(Section A(2)(d).)
45
October 2011 The College receives a copy of the complaint that the Acting
General Counsel filed in Case 30–CA–18888. At the next
JD–12–13
71

bargaining session, the College resubmits its March 2011 contract
proposal for consideration, even though that proposal did not
include any of the NIDs that the parties had identified in the
preceding months.
5
When Vallera questions the College about the reason for making
what she views as a regressive proposal, the College asserts that
Vallera violated the small group negotiation guideline that
discussions in those sessions are off the record.
10
The Federal mediator withdraws after the parties are unable to
agree on a process for future bargaining sessions. (Section
A(2)(e).)

November 2011 The College notifies PFAC that it will provide PFAC with a new 15
contract proposal in December 2011. Accordingly, the College
states that the parties do not need to meet until after PFAC has an
opportunity to review and respond to the new proposal. (Section
A(2)(f).)
20
December 2011 The College sends its new contract proposal to PFAC. Among
other changes, the new proposal explicitly states that PFAC waives
its right to effects bargaining, and does not include many of the
NIDs that the parties identified earlier in 2011. (Section A(2)(g).)
25
Vallera sends the College an information request about its Early
Feedback System. (Section E(2)(b).)

Vallera asks the College to bargain about the impact and effects of
its decision to reduce the credit hours awarded for certain courses. 30
(Section B(2)(d).)

February 2012 Vallera asks the College for dates to resume face-to-face
negotiations for a successor collective-bargaining agreement, and
states that PFAC wishes to pick up negotiations from where the 35
parties left off in October 2011.

Strazewski replies that PFAC should either respond to the
College’s December 2011 contract proposal or make a
counterproposal. (Section A(2)(h).) 40

The College fails and refuses to respond to part of Vallera’s
December 2011 information request about its Early Feedback
System. (Section E(2)(c).)
45
An arbitrator rules in employee R.P.’s case that part-time faculty
members are only employees of the College during semesters
JD–12–13
72

when they are teaching, and therefore do not have standing to
question their future employment. (Section B(2)(e).)

The College advises Vallera that it will meet with PFAC about the
changes that it made to course credit hours if PFAC first provides 5
the College with information to indicate which PFAC members
were affected by the changes. (Section B(2)(f).)

Spring 2012 The parties continue their bargaining standoff, with PFAC
demanding that the College resume face-to-face negotiations, and 10
the College demanding that PFAC respond to the College’s
December 2011 proposal before any face-to-face meetings occur.
(Section A(2)(h).)

May 2012 The College notifies PFAC that it is willing to meet to discuss the 15
effects of the changes that the College made to course credit hours.
(Section B(2)(f).)

Vallera sends the College an information request about faculty
class assignments for fall 2012. (Section F(2)(l).) 20

Vallera sends the College an information request about the
College’s investigation of her for misconduct. (Section H(2)(f).)

June 2012 The College refuses to provide information in response to 25
Vallera’s May 2012 information request about the College’s
investigation of her for misconduct. (Section H(2)(f).)

The College agrees to resume face-to-face bargaining sessions
regarding a successor collective-bargaining agreement, and 30
regarding the effects of the changes that the College made to
course credit hours. (Sections A(2)(i), B(2)(f).)

July 2012 PFAC renews its request for information about faculty class
assignments for fall 2012. (Section F(2)(m).) 35

September 2012 The College provides PFAC with information in response to
PFAC’s May 2012 information request about faculty class
assignments for fall 2012. (Section F(2)(m).)
40
As stated elsewhere in this decision, I have found that the College violated Section
8(a)(5) and (1) of the Act by: (a) failing and refusing to meet and bargain with PFAC from
February 16 to June 13, 2012 regarding a successor collective-bargaining agreement (Section
A(3), supra); (b) failing and refusing to bargain with PFAC about the impact and effects of
College’s implementation of course credit hour reductions in several departments (Section B(3), 45
supra); (c) failing and refusing to respond to PFAC’s information requests about the Early
Feedback System and the College’s investigation of Vallera for misconduct (Sections E(3),
JD–12–13
73

H(3)(b), supra); and (d) unreasonably delaying in responding to PFAC’s information request
about faculty class assignments for fall 2012 (Section F(3)(c), supra).68

3. Discussion and analysis
5
Section 8(d) of the Act defines the duty to bargain collectively as “the performance of the
mutual obligation of the employer and the representative of the employees to meet at reasonable
times and confer in good faith with respect to wages, hours, and other terms and conditions of
employment . . . but such obligation does not compel either party to agree to a proposal or
require the making of a concession.” Good-faith bargaining presupposes a desire to reach 10
ultimate agreement to enter into a collective bargaining contract. Public Service Co. of
Oklahoma, 334 NLRB 487, 487–488 (2001) (citing NLRB v. Insurance Agents’ Union, 361 U.S.
477, 485 (1960)), enfd. 318 F.3d 1173 (10
th
Cir. 2003).

In determining whether a party has violated its statutory duty to bargain in good faith, the 15
Board examines the totality of the party’s conduct, both at and away from the bargaining table.
From the context of an employer’s total conduct, it must be decided whether the employer is
engaging in hard but lawful bargaining to achieve a contract that it considers desirable or is
unlawfully endeavoring to frustrate the possibility of arriving at any agreement. Although the
Board does not evaluate whether particular proposals are acceptable or unacceptable, the Board 20
will examine proposals when appropriate and consider whether, on the basis of objective factors,
bargaining demands constitute evidence of bad-faith bargaining. An inference of bad-faith
bargaining is appropriate when the employer’s proposals, taken as a whole, would leave the
union and the employees it represents with substantially fewer rights and less protection than
provided by law without a contract.

In such circumstances, the union is excluded from the 25
participation in the collective-bargaining process to which it is statutorily entitled, effectively
stripping it of any meaningful method of representing its members in decisions affecting
important conditions of employment and exposing the employer’s bad faith. Public Service Co.
of Oklahoma, 334 NLRB at 487–488.
30
Finally, it is axiomatic that under the NLRA neither the Board nor the courts may compel
concessions or otherwise sit in judgment upon the substantive terms of collective-bargaining
agreements. However, enforcement of the obligation to bargain collectively is crucial to the
NLRA statutory scheme. Public Service Co. of Oklahoma, 334 NLRB at 488 (citing NLRB v.
American National Insurance Co., 343 U.S. 395, 402–404 (1952)). Therefore, to the extent that I 35
examine the Respondent’s proposals in this proceeding, my purpose is not to determine their
merits, but instead to determine whether in combination and by the manner proposed they
evidence an intent not to reach agreement. Id. (citing Coastal Electric Cooperative, 311 NLRB
1126, 1127 (1993)).
40

68
I also, of course, found that the College violated Section 8(a)(3) and (1) of the Act when it did not
assign Vallera a second class to teach for the fall 2012 semester, and when the College notified Vallera
that it was contemplating disciplinary action against her because of her protected statements about alleged
surveillance at her home. Based on the facts of this case, however, those findings are not probative on the
question of whether the College engaged in overall bad faith bargaining.
JD–12–13
74

In this case, the evidentiary record shows that within days of learning in October 2011
that the Board filed a complaint against it in Case 30–CA–018888, the College abruptly decided
to resubmit its March 30, 2011 contract proposal. In so doing, the College discarded six months
of productive bargaining with PFAC (including the NIDs that the parties identified), save for the
instances where PFAC agreed to language that was in the March 30 proposal. When Vallera 5
understandably challenged the College’s decision, the College asserted that Vallera violated the
ground rules for small group negotiations, and the College then ceased all face-to-face
bargaining to prepare a revised contract proposal. The proposal that the College submitted in
December 2011, however, was largely similar to the College’s March 2011 proposal, except that
the College amplified its demand that PFAC waive its right to effects bargaining, and eliminated 10
the instructional continuity clause from the contract. And, when PFAC approached the College
to resume face-to-face negotiations for a successor collective-bargaining agreement (and to
request effects bargaining about the reductions that the College made to the credit hours awarded
for certain courses), the College unlawfully insisted that PFAC first meet preconditions before
the College would agree to such bargaining. 15

The evidentiary record supports a finding that the College engaged in a course of overall
bad-faith bargaining. First, the College presented PFAC with regressive contract proposals in
October and December 2011 that retaliated against PFAC for protected activity in the form of
litigating the charges in the complaint in Case 30–CA–018888. 69 Indeed, the College submitted 20
its October 2011 regressive proposal within days of receiving the complaint, and offered no
explanation for why it was returning to an outdated proposal that did not incorporate any of the
progress that the parties made in their negotiations.70 The Board has held that regressive
proposals that are retaliatory and/or lack justification are evidence of bad faith. Whitesell Corp.,
357 NLRB No. 97, slip op. at 61 (2011) (finding of bad faith established in part by evidence that 25
respondent was committed to forcing employees to accept worse contract terms in retaliation for
the union’s success in requiring the employer to rescind an unlawfully imposed contract);
Quality House of Graphics, 336 NLRB 497, 515 (2001) (finding that the timing of the
employer’s bargaining proposal, the lack of justification for the proposal, and the proposal’s
drastic and unprecedented nature suggested that the employer was bargaining in bad faith and 30
with an aim of retaliating against the union for pursuing charges that led to the complaint before
the Board).

69
It should be noted that the College engaged in similar retaliatory conduct in October 2010.
Specifically, in October 2010, the College demanded for the first time in a contract proposal that PFAC
waive its right to effects bargaining. When questioned about its rationale for that demand, the College
referenced the recent settlement that PFAC obtained regarding the College’s failure to bargain about the
effects of credit hour changes in the photography department, and stated that it did not want to go through
a similar dispute in the future. While I do not rely heavily on the events of 2010 for my analysis and
findings, I note that the Board has recognized that when bad-faith is at issue, the violation does not occur
at a precise point in time, and it may not become apparent until long after negotiations began that
negotiations were in bad faith from the inception. Regency Service Carts, 345 NLRB 671, 676 fn. 14
(2005).
70
At trial, Strazewski asserted that the College prepared its December 2011 proposal because the
language in prior proposals was ambiguous, and because the College wanted PFAC to respond to concrete
proposed contract language. (See Section A(2)(f), supra.) Those explanations are not persuasive because
they do not explain or offer justification for why the December 2011 proposal was regressive in nature.
JD–12–13
75

Second, when the College presented PFAC with its December 2011 contract proposal, it
made it clear that it wanted PFAC to agree to contract language that would constitute a clear and
unmistakable waiver of PFAC’s right to effects bargaining. Without a contract, of course, the
College would be obligated under the Act to notify and bargain with PFAC about any changes
that it wished to make to the terms and conditions of PFAC bargaining unit members. Public 5
Service Co. of Oklahoma, 334 NLRB at 498. By insisting on contract language that would have
PFAC and its members waive their right to engage in both decisional and effects bargaining
concerning virtually all terms and conditions of employment, and thereby leave PFAC members
with substantially fewer rights and less protection than they would have under the Act without a
contract, the College engaged in bargaining that demonstrated an intent to frustrate the 10
possibility of arriving at any agreement.71 Whitesell Corp., 357 NLRB No. 97, slip op. at 3
(employer frustrated bargaining by insisting on retaining control over a broad range of
mandatory subjects); Public Service Co. of Oklahoma, 334 NLRB at 501 (employer engaged in
bad-faith bargaining by insisted during negotiations that it have the right to change all aspects of
the bargaining unit’s terms and conditions of employment without interference from the union). 15

And third, when the time arose for the parties to resume negotiations (or start
negotiations, as to the effects of course credit hour reductions), the College unlawfully refused to
participate in face-to-face negotiations until PFAC first satisfied preconditions set by the
College. (See Sections A(3), B(3), supra.) Because of the College’s preconditions, the parties 20
did not meet face to face to bargain about a successor collective-bargaining agreement from
February 16 to June 13, 2012. Similarly, because of the College’s preconditions, the parties did
not engage in effects bargaining about course credit hour reductions from February 21 to May 4,
2012. Thus, by setting preconditions to face-to-face bargaining, the College frustrated the
parties’ efforts to reach an agreement, and thereby engaged in bad faith bargaining. See 25
Whitesell Corp., 357 NLRB No. 97, slip op. at 3 (explaining that the employer obstructed
negotiations when it notified the union that it would not schedule additional bargaining sessions
until the union first provided proof of its intent to come to an agreement).

In sum, viewing the College’s conduct in its totality, I find that the College did engage in 30
overall bad-faith bargaining as alleged in paragraph XII of the complaint. Indeed, by making
contract proposals that were retaliatory and that lacked justification, insisting on a management
rights clause that would leave PFAC members with substantially fewer rights than they would
have under the Act, and engaging in delaying tactics by setting unlawful preconditions to face-
to-face bargaining, the College demonstrated an intent to frustrate the possibility of reaching any 35
agreement.

CONCLUSIONS OF LAW

1. By failing and refusing to meet and bargain with PFAC since February 16, 2012, 40

71
I have considered the fact that the College’s request for an effects bargaining waiver was not new,
given that the College requested such a waiver as far back as October 2010. The October 2010 request,
however, was made in retaliation for PFAC’s protected activity. Moreover, the evidentiary record
indicates that after October 2010, the parties tabled that issue and focused their negotiations on other parts
of the contract. The College, therefore, essentially revived the effects bargaining waiver as a prominent
and live issue when it included more explicit effects bargaining waiver language in its December 2011
contract proposal.
JD–12–13
76

regarding a successor collective-bargaining agreement, the College violated Section 8(a)(5) and
(1) of the Act.

2. By failing and refusing to bargain with PFAC about the impact and effects of the
College’s implementation of its decision to reduce the number of credit hours awarded for ten 5
courses (Accounting; Screenwriting Workshop; Adaptation in LA; Acquiring Intellectual
Property/LA; Theory, Harmony & Analysis I; Theory, Harmony & Analysis II; Directing I; Pro
Survival & How to Audition; Local Government Politics Seminar; and State and National
Government Politics Seminar) since February 21, 2012, the College violated Section 8(a)(5) and
(1) of the Act. 10

3. By, since December 8, 2011, maintaining an overbroad work rule (the Network and
Computer Use Policy) that interferes with, restrains and coerces employees in the exercise of
rights guaranteed by Section 7 of the Act, the College violated Section 8(a)(1) of the Act.
15
4. By, since February 17, 2012, failing and refusing to provide PFAC with certain
information that PFAC requested about the College’s unilateral implementation of its Early
Feedback System, the College violated Section 8(a)(5) and (1) of the Act.

5. By, in or about March 2012, failing and refusing to assign more than one class section 20
to Diana Vallera for the fall 2012 semester because she engaged in union and protected
concerted activities, the College violated Section 8(a)(3) and (1) of the Act.

6. By, since May 13, 2012, failing and refusing to provide PFAC with certain
information that PFAC requested about the College’s assignments of classes to part-time faculty 25
in the photography department for fall 2012, the College violated Section 8(a)(5) and (1) of the
Act.

7. By, since June 5, 2012, failing and refusing to provide PFAC with certain information
that PFAC requested concerning the nature of and basis for the College’s investigation of Diana 30
Vallera for misconduct, the College violated Section 8(a)(5) and (1) of the Act.

8. By notifying Diana Vallera on or about August 13, 2012, that the College planned to
discipline her for engaging in union and protected concerted activities (specifically, for telling
others about her belief that the College engaged in surveillance of her home), the College 35
violated Section 8(a)(3) and (1) of the Act.

9. By failing and refusing to bargain in good faith with PFAC, as demonstrated by the
College’s overall conduct in 2011–2012, the College violated Section 8(a)(5) and (1) of the Act.
40
10. By committing the unfair labor practices stated in Conclusions of Law 1–9 above,
the College engaged in unfair labor practices affecting commerce within the meaning of Section
8(a)(1), (3) and (5) and Section 2(6) and (7) of the Act.

11. I recommend dismissing the complaint allegations that are not addressed in the 45
Conclusions of Law set forth above.

JD–12–13
77

REMEDY

A. Traditional Remedies

Having found that Respondent has engaged in certain unfair labor practices, I shall order 5
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act.

Respondent, having unlawfully refused to assign Diana Vallera a second class to teach in
the fall 2012 semester for discriminatory reasons, must make her whole for any loss of earnings 10
and other benefits that resulted from that decision. Backpay for this violation shall be computed
in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6
th
Cir.
1971), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8
(2010). 15

Regarding Respondent’s failure to bargain with PFAC about the effects of its decision to
reduce the number of credit hours awarded for 10 courses, I will order Respondent to bargain
with PFAC about that issue.72 In addition, to restore some measure of economic strength to
PFAC and recreate a measure of balanced bargaining power, I will order a limited backpay 20
remedy designed to make 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 reduce credit hours for the
10 courses identified in the Conclusions of Law. Specifically, for each bargaining unit member
who taught one of the 10 courses after the credit hours were reduced, Respondent shall pay
backpay at the rate of their normal wages for the affected course(s) from 5 days after the date of 25
this Decision and Order until the occurrence of the earliest of the following conditions:
(1) Respondent bargains to agreement with PFAC about credit hour reductions for the 10
courses; (2) the parties reach a bona fide impasse in bargaining; (3) PFAC 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 notice of its desire to bargain with 30
PFAC; or (4) PFAC subsequently fails to bargain in good faith. In no event shall the sum paid to
these employees exceed the amount they would have earned as wages from the date on which
course credit hours were reduced to the time they secured equivalent employment elsewhere, or
the date on which Respondent shall have offered to bargain in good faith, whichever occurs
sooner. However, in no event shall this sum be less than the employees would have earned for a 35
2-week period at the rate of their normal wages before Respondent reduced course credit hours.
See Smurfit-Stone Contractor Enterprises, 357 NLRB No. 144, slip op. at 5–6 (2011) (citing
Transmarine Navigation Corp., 170 NLRB 389 (1968)). Backpay shall be based on earnings
that the affected employees would normally have received during the applicable period, less any
net interim earnings, and shall be computed in accordance with Ogle Protection Service, 183 40
NLRB 682 (1970), enfd. 444 F.2d 502 (6
th
Cir. 1971), with interest at the rate prescribed in New

72
PFAC also requested that I order Respondent to engage in effects bargaining about the Early
Feedback System. (CP Posttrial Br. at 69–70.) I decline that request because the complaint did not allege
that, and the parties did not litigate whether, Respondent failed to engage in effects bargaining regarding
its decision to implement the Early Feedback System.
JD–12–13
78

Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB No. 8 (2010).

For all backpay required herein, Respondent shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar quarters. Respondent shall also 5
compensate the discriminatees for the adverse tax consequences, if any, of receiving one or more
lump-sum backpay awards covering periods longer than 1 year, Latino Express, Inc., 359 NLRB
No. 44 (2012).

B. Special Remedies 10

In addition to the remedies that I have discussed above, the Acting General Counsel
and/or PFAC request that I impose the following special remedies in this case: (a) a broad
remedial order; (b) bargaining expenses; (c) litigation expenses; (d) a bargaining order with
specific timelines and reporting requirements; (e) an order requiring Respondent to notify PFAC 15
and provide PFAC an opportunity to bargain about “all future changes affecting the union with
regard to course scheduling and assignment; (f) an order requiring Respondent to honor all NIDs
that the parties identified; and (g) an order requiring Respondent to pay, or otherwise arrange, for
a full page advertisement in the Columbia Chronicle (a student-run newspaper at the College)
that will include a copy of the Notice that will issue in this case. (GC Posttrial Br. at 75-80; CP 20
Posttrial Br. at 67-68.) As described in more detail below, I do not find that any of the requested
special remedies are warranted, and therefore decline to impose them.

1. Broad remedial order
25
The Acting General Counsel and PFAC have requested that I issue a broad remedial
order in this case. The Board has stated that “a broad cease-and-desist order enjoining a
respondent from violating the Section 7 rights of employees ‘in any other manner,’ is warranted
‘when a respondent is shown to have a proclivity to violate the Act or has engaged in such
egregious or widespread misconduct as to demonstrate a general disregard for the employees’ 30
fundamental statutory rights.’” Five Star Mfg., 348 NLRB 1301, 1302 (2007) (citing Hickmott
Foods, 242 NLRB 1357, 1357 (1979)), enfd. 278 Fed. Appx. 697 (8
th
Cir. 2008). In either
situation, the Board reviews the totality of circumstances to ascertain whether the respondent’s
specific unlawful conduct manifests an attitude of opposition to the purposes of the Act to
protect the rights of employees generally, which would provide an objective basis for enjoining a 35
reasonably anticipated future threat to any of those Section 7 rights. Id.

I do not find that Respondent has shown a proclivity to violate the Act. Nor do I find that
Respondent has engaged in egregious or widespread misconduct that demonstrates a general
disregard for employees’ fundamental statutory rights. The majority of the violations that 40
Respondent has committed in recent history (including this case and Case 30–CA–018888) have
been failures to comply with information requests, setting unlawful preconditions to bargaining,
and failures to engage in effects bargaining after making material changes to the terms and
conditions of employment. Any future misconduct of that nature (or, for that matter, any future
overall bad-faith bargaining), however, would be in violation of a narrow order directing 45
Respondent to cease and desist from violating the Act “in any like or related manner,” and
JD–12–13
79

subject to contempt proceedings. See Hospital San Cristobal, 358 NLRB No. 89, slip op. at 1
fn. 2 (2012).

More generally, reviewing the totality of circumstances, I find that while Respondent did
violate the Act, it did not engage in conduct that manifests an attitude of opposition to the Act 5
and its purposes. The bargaining relationship between Respondent and PFAC is a strained one,
but it is not beyond repair, as demonstrated by the fact that the parties have shared periods of
cooperative and productive negotiations, including, but not limited to, early 2011, when the
parties worked with a Federal mediator and identified several NIDs. A broad remedial order is
therefore not warranted at this time. 10

2. Bargaining expenses

The Board has a “long established practice of relying on bargaining orders to remedy the
vast majority of bad-faith bargaining violations,” specifically by relying on the combination of 15
bargaining orders, a customary cease-and-desist order and the posting of a notice to “induce a
respondent to fulfill its statutory obligations.” Whitesell Corp., 357 NLRB No. 97, slip op. at 4
(2011) (citing Frontier Hotel & Casino, 318 NLRB 857, 859 (1995)). However, in “cases of
unusually aggravated misconduct . . . where it may fairly be said that a respondent’s substantial
unfair labor practices have infected the core of a bargaining process to such an extent that their 20
effects cannot be eliminated by the application of traditional remedies, . . . an order requiring the
respondent to reimburse the charging party for negotiation expenses is warranted both to make
the charging party whole for the resources that were wasted because of the unlawful conduct, and
to restore the economic strength that is necessary to ensure a return to the status quo ante at the
bargaining table. Id. (citations omitted); see also Santa Barbara New Press, 358 NLRB No. 141, 25
slip op. at 3 (2012).

After considering the facts of this case, I do not find that respondent engaged in
“unusually aggravated misconduct” that would warrant an award of bargaining expenses. As I
have found, Respondent did engage in some serious misconduct, including insisting that PFAC 30
agreed to waive its right to effects bargaining, making regressive proposals in retaliation for
PFAC’s protected activity, and setting unlawful preconditions to bargaining. I cannot find,
however, that Respondent’s misconduct was so aggravated as to infect the bargaining process to
the point where traditional remedies would not be effective. Indeed, when the Board has
awarded bargaining expenses, it has been able to cite misconduct well beyond that which the 35
Respondent engaged in here. See, e.g., Santa Barbara New Press, 358 NLRB No. 141, slip op.
at 3–4 (bargaining expenses award based not only on the respondent’s insistence on a broad
management rights clause, but also the insistence on the right to unilaterally identify disciplinary
offenses and the appropriate level of discipline, as well as the respondent’s misconduct away
from the bargaining table that demonstrated a calculated strategy to reduce negotiations to a 40
sham); Whitesell Corp., 357 NLRB No. 97, slip op. at 4 (same, where the respondent insisted on
unilateral control over a broad range of mandatory subjects, repeatedly asserted that the parties
were at impasse despite the union’s concessions, refused to agree to a union recognition clause,
made regressive and retaliatory contract proposals, threatened future regressive proposals if the
union did not accede to its demands, and set unlawful preconditions to future meetings). 45
Respondent’s misconduct, while serious, falls short of the aggravated level required to justify an
award of bargaining expenses.
JD–12–13
80

3. Litigation expenses

The Board has stated that an order requiring a respondent to reimburse a union for
litigation expenses is appropriate only where the defenses raised by the respondent are frivolous, 5
rather than debatable. A respondent’s defenses will be considered debatable if they turn on
issues of credibility. Whitesell Corp., 357 NLRB No. 97, slip op. at 67 (2011) (citing Frontier
Hotel & Casino, 318 NLRB at 860). In addition, the Board has denied reimbursement of
litigation costs in cases where some of the complaint allegations were dismissed, a fact that
undermined the claim that the respondent’s defenses were frivolous. Frontier Hotel & Casino, 10
318 NLRB 857, 860 (1995), enfd. 118 F.3d 795 (D.C. Cir. 1997).

As my decision in this case demonstrates, Respondent’s defenses in this case were not
frivolous. Respondent and I saw eye to eye on several complaint allegations that I recommended
be dismissed. Further, for the violations that I found, Respondent presented good-faith, 15
debatable arguments about the credibility of witnesses and how I should interpret the parties’
actions during negotiations and concerning employment decisions. It would not be appropriate
for me to penalize Respondent with an award of litigation expenses merely for asserting its right
to defend itself in good-faith in these proceedings.
20
4. Scope of bargaining order

As part of the bargaining order that I will issue in this case, the Acting General Counsel
requests that I order Respondent to: bargain on request within 15 days of my order; bargain for a
minimum of 4 hours per week until the parties reach an agreement or a valid impasse; and 25
prepare bargaining reports every 15 days, and submit those reports to the Regional Director and
PFAC for review. (GC Posttrial Br. at 75.) There is no support, however, for those remedies in
the Board’s case law. See Myers Investigative & Security Services, 354 NLRB 367, 368 fn. 2
(2009) (rejecting bargaining order language that would have required respondent to meet with
the union at least 24 hours per month, and at least 6 hours per session); Monmouth Care Center, 30
354 NLRB 11, 11 fn. 3 (2009) (rejecting bargaining order language that directed respondents to
bargain jointly with the union once a week). Seeing no basis for extraordinary remedies here, I
will direct Respondent to comply with a traditional bargaining order.

5. Requirement that the College bargain with PFAC about all future changes affecting 35
PFAC regarding course scheduling and assignment

The Acting General Counsel asks that I order the College to bargain with PFAC about all
future changes affecting PFAC regarding course scheduling and assignment. (GC Posttrial Br. at
75.) I do not believe that such an order is appropriate. As a preliminary matter, the Acting 40
General Counsel requests an order that is arguably overbroad insofar as it would require effects
bargaining for any changes relating to course scheduling and assignment, regardless of whether
the changes might be de minimis in nature. Beyond that issue, I find that the cease and desist
order that I will issue in this case is sufficient, particularly when coupled with the coverage of the
Act itself and the fact that the door to the courthouse remains open should effects bargaining 45
disputes arise in the future.

JD–12–13
81

6. Requirement that Respondent honor all NIDs

PFAC requests that I order Respondent to honor all NIDs that the parties identified in
2011 before negotiations deteriorated. (CP Posttrial Br. at 67.) Once again, I do not find that
such an order would be appropriate. 5

As noted above, I did find that Respondent engaged in bad-faith bargaining when it
submitted regressive and retaliatory contract proposals in October and December 2011 that,
among other things, disregarded all NIDs that the parties had identified in the preceding months.
It does not follow, however, that I should order Respondent to honor all NIDs in future 10
negotiations, particularly when Respondent has consistently maintained that all NIDs remain
open for further negotiation (particularly once the parties create and begin reviewing a complete
draft agreement). Indeed, the parties and the Federal mediator came up with the term NID
precisely because NIDs were not meant to rise to the level of tentative agreements. I see no basis
for me to redefine the terms that the parties worked out during their negotiations. 15

7. Full-page notice posting in student-run newspaper

Finally, in addition to the customary notice posting requirements, the Acting General
Counsel requested that I also require Respondent to arrange for the notice to be printed in the 20
Columbia Chronicle, a student-run newspaper at the College. The Board has required such a
notice posting in the past, but only in cases where the respondent’s “unfair labor practices are so
numerous, pervasive, and outrageous that special notice and access remedies are necessary to
dissipate fully the coercive effects of the unfair labor practices found.” Fieldcrest Cannon, Inc.,
318 NLRB 470, 473 (1995); see also Dynatron/Bondo Corp., 324 NLRB 572, 572 fn. 4, 586 25
(1997), enfd. in pertinent part, 176 F.3d 1310 (11
th
Cir. 1999). For the reasons that I have stated
elsewhere in this remedy section, I find that Respondent’s conduct, while serious, does not rise to
the level of warranting the extraordinary remedy of requiring Respondent to post a full-page
copy of the notice in the student-run newspaper.
30
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended73

ORDER
35
Respondent, Columbia College Chicago, located in Chicago, Illinois, its officers, agents,
successors, and assigns, shall

1. Cease and desist from
40
(a) Failing or refusing to bargain in good faith with the Part-Time Faculty Association at
Columbia (the Union) as the exclusive collective-bargaining representative of its part-time
faculty at its facility in Chicago, Illinois.

73
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–12–13
82

(b) Making regressive contract proposals that retaliate against the Union and its members
for exercising their under Section 7 of the Act.

(c) Insisting on contract proposals that essentially give Respondent unfettered control 5
over a broad range of mandatory subjects of bargaining, including the effects of decisions
regarding those mandatory subjects of bargaining.

(d) Setting unlawful preconditions that the Union must satisfy before Respondent will
engage in face to face bargaining or effects bargaining. 10

(e) Failing or refusing to bargain in good faith with the Union about the effects of
Respondent’s decision to reduce the number of credit hours awarded for certain courses.

(f) Failing to provide, or unreasonably delaying in providing, information requested by 15
the Union that is relevant and necessary for the Union to fulfill its role as the exclusive
collective-bargaining representative of unit employees.

(g) Maintaining the current version of its Network and Computer Use Policy, which sets
forth an overbroad work rule that unit members reasonably would construe as prohibiting 20
Section 7 activity.

(h) Notifying unit members that they face forthcoming disciplinary action because they
engaged in Section 7 activity.
25
(i) Discriminating against unit members in teaching assignments because they engaged
in Section 7 activity.

(j) In any like or related manner interfering with, restraining, or coercing unit members
in the exercise of the rights guaranteed them by Section 7 of the Act. 30

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) On request, bargain with the Union as the exclusive collective-bargaining
representative of the employees in the following appropriate unit concerning terms and 35
conditions of employment, and concerning the effects of Respondent’s decision to reduce the
number of credit hours awarded for the following 10 courses: Accounting; Screenwriting
Workshop; Adaptation in LA; Acquiring Intellectual Property/LA; Theory, Harmony & Analysis
I; Theory, Harmony & Analysis II; Directing I; Pro Survival & How to Audition; Local
Government Politics Seminar; and State and National Government Politics Seminar; if 40
understandings are reached, embody the understandings in signed agreements:

[A]ll part-time faculty members who have completed teaching at least one semester at
Columbia College Chicago, excluding all other employees, full-time faculty, artists-in-
residence, and Columbia College Chicago graduate students, part-time faculty members 45
teaching only continuing education, music lessons to individual students or book and
paper making classes, Columbia College Chicago full-time staff members, teachers
JD–12–13
83

employed by Erickson Institute, the YMCA or Adler Planetarium, and other individuals
not appearing on the Columbia College Chicago payroll, managers and confidential
employees, guards, and supervisors as defined in the Act.

(b) Make any unit members who taught the 10 courses for which the College reduced 5
credit hours starting in 2011 whole for any loss of earnings and other benefits suffered as a result
of Respondent’s failure to engage in effects bargaining, in the manner set forth in the remedy
section of the decision.

(c) Make Diana Vallera whole for any loss of earnings or other benefits suffered as a 10
result of the discrimination against her regarding fall 2012 teaching assignments in the manner
set forth in the remedy section of the decision.

(d) Within 14 days from the date of the Board’s Order, remove from its files any
reference to Respondent’s notice to Diana Vallera that Respondent was contemplating 15
disciplining her for engaging in protected activity by telling others about her belief that
Respondent conducted surveillance at her home, and within 3 days thereafter notify the Diana
Vallera in writing that this has been done and that the unlawful notice and the documentation on
which it was based will not be used against her in any way.
20
(e) To the extent that it has not yet done so, provide the Union with the information that
the Union requested in the following information requests: December 20, 2011 (Early Feedback
System); May 13, 2012 (fall 2012 faculty class assignments); and May 17, 2012 (investigation of
Diana Vallera for misconduct).
25
(f) 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
electronic form, necessary to analyze the amount of backpay due under the terms of this Order. 30

(g) Within 14 days after service by the Region, post at its facility in Chicago, Illinois
copies of the attached notice marked “Appendix.”74 Copies of the notice, on forms provided by
the Regional Director for Region 13, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in 35
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by 40
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

74 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–12–13
84

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 October 1, 2011.

(h) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that 5
Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
10
Dated, Washington, D.C. March 15, 2013

____________________ 15
Geoffrey Carter
Administrative Law Judge
JD–12–13

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 fail or refuse to bargain in good faith with the Part-Time Faculty Association at
Columbia (the Union) as the exclusive collective-bargaining representative of the College’s part-
time faculty at the College’s facility in Chicago, Illinois.

WE WILL NOT make regressive contract proposals that retaliate against the Union and its
members for exercising their rights under Section 7 of the Act.

WE WILL NOT insist on contract proposals that essentially give the College unfettered control
over a broad range of mandatory subjects of bargaining, including the effects of decisions
regarding those mandatory subjects of bargaining.

WE WILL NOT set unlawful preconditions that the Union must satisfy before the College will
engage in face-to-face bargaining or effects bargaining.

WE WILL NOT fail or refuse to bargain in good faith with the Union about the effects of the
College’s decision to reduce the number of credit hours awarded for certain courses.

WE WILL NOT fail to provide, or unreasonably delay in providing, information requested by
the Union that is relevant and necessary for the Union to fulfill its role as the exclusive
collective-bargaining representative of unit employees.

WE WILL NOT maintain the current version of the College’s Network and Computer Use
Policy, which sets forth an overbroad work rule that unit members reasonably would construe as
prohibiting Section 7 activity.

WE WILL NOT notify unit members that they face forthcoming disciplinary action because they
engaged in Section 7 activity.
JD–12–13

WE WILL NOT discriminate against unit members in teaching assignments because they
engaged in Section 7 activity.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce unit members in
the exercise of the rights guaranteed them by Section 7 of the Act

WE WILL, on request, bargain with the Union as the exclusive collective-bargaining
representative of the employees in the following appropriate unit concerning terms and
conditions of employment, and concerning the effects of the College’s decision to reduce the
number of credit hours awarded for the following 10 courses: Accounting; Screenwriting
Workshop; Adaptation in LA; Acquiring Intellectual Property/LA; Theory, Harmony & Analysis
I; Theory, Harmony & Analysis II; Directing I; Pro Survival & How to Audition; Local
Government Politics Seminar; and State and National Government Politics Seminar; if
understandings are reached, embody the understandings in signed agreements:

[A]ll part-time faculty members who have completed teaching at least one semester at
Columbia College Chicago, excluding all other employees, full-time faculty, artists-in-
residence, and Columbia College Chicago graduate students, part-time faculty members
teaching only continuing education, music lessons to individual students or book and
paper making classes, Columbia College Chicago full-time staff members, teachers
employed by Erickson Institute, the YMCA or Adler Planetarium, and other individuals
not appearing on the Columbia College Chicago payroll, managers and confidential
employees, guards, and supervisors as defined in the Act.

WE WILL make any unit members who taught the 10 courses for which the College reduced
credit hours starting in 2011 whole for any loss of earnings and other benefits suffered as a result
of the College’s failure to engage in effects bargaining, plus interest compounded daily.

WE WILL make Diana Vallera whole for any loss of earnings or other benefits suffered as a
result of the discrimination against her regarding fall 2012 teaching assignments, plus interest
compounded daily.

WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.

WE WILL compensate Diana Vallera and the unit members who taught the 10 courses for which
the College reduced credit hours for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1 year.

WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the College’s notice to Diana Vallera that the College was contemplating
disciplining her for engaging in protected activity by telling others about her belief that the
College conducted surveillance at her home, and within 3 days thereafter notify Diana Vallera in
writing that this has been done and that the unlawful notice and the documentation on which it
was based will not be used against her in any way.

JD–12–13

WE WILL, to the extent that we have not yet done so, provide the Union with information in
response to the following information requests: December 20, 2011 (Early Feedback System);
May 13, 2012 (fall 2012 faculty class assignments); and May 17, 2012 (investigation of Diana
Vallera for misconduct).

COLUMBIA COLLEGE CHICAGO
(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. You may also obtain information from the Board’s website: www.nlrb.gov.
The Rookery Building, 209 South LaSalle Street, Suite 900, Chicago, IL 60604-5208
(312) 353-7570, Hours: 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 BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (312) 353-7170.