BERKLEE COLLEGE OF MUSIC

National Labor Relations Board - Board Decisions

Aug 26, 2015

362 NLRB No. 178 (N.L.R.B. 2015)

362 NLRB No. 178
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Berklee College of Music and Berklee Faculty Union,
American Federation of Teachers, Local 4412,
AFT-MA, AFL–CIO. Case 01–CA–089878
August 26, 2015
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON,
AND MCFERRAN
On September 20, 2013, Administrative Law Judge
Susan A. Flynn issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief and a brief in
support of the judge’s decision, and the Respondent filed
a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
Background
The Respondent operates an undergraduate music
school in Boston, Massachusetts. The Berklee Faculty
Union has been the exclusive bargaining representative
of separate units of full-time and part-time faculty since
1985.
At the time of the events at issue here, the Respondent
and the Union were parties to a collective-bargaining
agreement effective September 1, 2010, to November 3,
2013. The collective-bargaining agreement gave the
Respondent the authority to determine what courses will
be offered, which faculty members will teach which
courses, and when and where each course will be taught.
The Respondent creates a preliminary schedule for the
fall semester in February of each year, and it posts its
planned course offerings for the fall in April. Currently
enrolled students may choose classes at that time. After
the initial April registration period, the Respondent re-
views class populations and makes necessary adjust-
ments by canceling or adding courses to meet students’
needs and efficiently use classroom space. By August,
the Respondent has a good idea of its prospective student
population for the fall semester, and the course offerings
are further revised at that time and throughout the subse-
quent add/drop period during the first week of the semes-
ter. Courses may be canceled for many reasons through-
out this process, including low or zero enrollment.
On August 21, 2012,1 the Respondent’s provost and
senior vice president for Academic Affairs, Lawrence
Simpson, announced that effective the fall semester, all
courses would be subject to a standardized minimum of
five students, except for courses that are, by their nature,
smaller (such as a trio). Previously, each course had its
own minimum, typically three or four students. The
five-student minimum was only a guideline, however;
some courses were offered in fall 2012 with fewer than
five students, and many courses with more than five stu-
dents were canceled.
On August 23, the Union demanded that the Respond-
ent cease implementing the new standardized minimum
until it negotiated with the Union over the impact of that
proposed change. The parties met on September 3 and 5.
The September 3 meeting was a preliminary discussion
between Simpson and Union President Willis Schultz.
Among other matters, Simpson and Schultz decided that
the parties’ attorneys would not attend the September 5
meeting. The September 3 meeting ended with Schultz
stating: “We’ll pretend that this meeting on the 5th is the
meeting that we should have had months ago surround-
ing these issues.” At the September 5 meeting, the Un-
ion stated its objections to the new policy, and the Re-
spondent explained the reasons for adopting it. Simpson
also stated that as of September 5, 41 courses initially
offered for the fall semester had been canceled, com-
pared to 58, 89, 63, and 56 courses canceled in the prior
four semesters. The process of adding and canceling
courses in response to enrollment changes continued
through September 14, the end of the add/drop period for
the fall 2012 semester.
Although the judge did not note it, the parties had in
the past dealt with the effects of canceling a course
through individual negotiations, after the course had been
canceled, regarding the impact of the cancellation on the
employee’s compensation. Michael Scott, who served as
union president from 1986 to 2011, testified that “period-
ically we reached a collegial resolution” through such
postimplementation bargaining.
Discussion
The judge found that the Respondent violated Section
8(a)(5) and (1) by failing to bargain with the Union over
the effects of its new course population minimum. The
judge found that the Respondent “agreed to confer and
explain the reasons for taking the action” and did so on
September 5, but that no bargaining occurred at that
meeting. In support of the latter finding, the judge cited
the fact that the parties did not bring their attorneys to the
September 5 meeting and Schultz’ testimony that neither

1 All dates are 2012, unless otherwise indicated.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
side would bargain in the absence of their attorneys. The
judge also found that the Union had no obligation to re-
quest bargaining again because the new minimum had
already been implemented and was a fait accompli. For
the reasons that follow, we disagree with the judge’s un-
fair labor practice finding.
An employer has a duty to bargain over the effects of
decisions that are themselves not mandatory subjects of
bargaining. First National Maintenance Corp. v. NLRB,
452 U.S. 666 (1981). That duty requires the employer to
provide the union with a meaningful opportunity to en-
gage in effects bargaining. Id. at 681–682 (“[B]argaining
over the effects of a decision must be conducted in a
meaningful manner and at a meaningful time.”). In de-
termining whether the requisite meaningful opportunity
has been provided, a relevant consideration is “whether
the union is afforded an opportunity to bargain ‘at a time
when it still represented employees upon whom the
Company relied for service.’” Komatsu America Corp.,
342 NLRB 649, 649 (2004) (quoting Metropolitan
Teletronics Corp., 279 NLRB 957, 959 (1986), enfd.
mem. 819 F.2d 1130 (2d Cir. 1987)). Once the employer
has furnished a meaningful opportunity to bargain, it is
incumbent on the union to pursue its bargaining rights.
See First National Maintenance, 452 U.S. at 682 (“A
union, by pursuing such bargaining rights, may achieve
valuable concessions . . . .”); see also Medicenter, Mid-
South Hospital, 221 NLRB 670, 678–680 (1975) (dis-
missing 8(a)(5) allegation where union received notice
on July 29 that employer would administer polygraph
tests over the course of 6 days beginning July 31, and
union never sought bargaining either before or during
testing); American Buslines, Inc., 164 NLRB 1055, 1056
(1967) (dismissing 8(a)(5) allegation where employer
gave union 1 week’s notice of a change and the union
“failed to prosecute its right to engage in” bargaining).
Here, the parties met on September 3 and 5 to discuss
the new course enrollment minimum. At the September
5 meeting, the Respondent addressed the Union’s stated
concerns regarding the new minimum and provided in-
formation about the number of courses canceled to date
under the new policy. The judge found that the Re-
spondent presented the Union with a fait accompli at that
meeting because the Respondent refused to rescind the
change. Typically, if a Union is presented with a fait
accompli, it need not engage in a meaningless effort to
turn back the clock and rescind the change. Tri-Tech
Services, 340 NLRB 894, 895, 903 (2003). But here, it is
undisputed that the Respondent was only obligated to
engage in effects bargaining, and, at the time of the Sep-
tember 5 meeting, the Union still had a meaningful op-
portunity to bargain over the effects of the change in
course minimums.2 The primary effects of the changed
course minimum would be felt when the Respondent
evaluated courses for cancellation in future semesters,
and the Union had ample time to bargain over those
long-term effects. As for the semester that had already
begun, the judge found a single course cancellation that
was directly attributable to the change in course mini-
mums. The parties, though, had negotiated to a “collegi-
al resolution” past disputes over the cancellation of
courses in postimplementation bargaining. Thus, under
all these circumstances, we conclude that the Respondent
provided the Union a meaningful opportunity to bargain
at a meaningful time. Therefore, the Union was not priv-
ileged to discontinue effects bargaining.
Having been furnished the opportunity to bargain, “it
was incumbent on the Union to test the Respondent’s
intent to bargain . . . by engaging in negotiations.”
Richmond Times-Dispatch, 345 NLRB 195, 199 (2005).
Although the Union timely requested effects bargaining
on August 23, the Union failed thereafter to “prosecute
its right to engage in such discussions.” American
Buslines, supra. The Union did not request information
concerning the new class size minimum before, during,
or after the September 5 meeting, it made no proposals
regarding effects, and it did not request any further meet-
ings despite the fact that implementation of the new poli-
cy was incomplete until September 14. In these circum-
stances, we find that the Respondent satisfied its effects
bargaining obligation. Id. (union protested employer
action and filed charge but failed to enforce its bargain-
ing rights diligently by attempting to persuade employer
to alter its decision); Medicenter, Mid-South Hospital,
supra (unilateral implementation of polygraph testing
lawful where union objected to testing but did not re-
quest any information or make any proposals before or

2 The Board’s general rule is that effects bargaining must occur be-
fore implementation for bargaining to be meaningful. See, e.g., Wood-
land Clinic, 331 NLRB 735, 738 (2000); Willamette Tug & Barge Co.,
300 NLRB 282, 283 (1990). That rule typically is necessary because
the implementation of a change can itself dramatically reduce, and
perhaps eliminate entirely, any leverage the union might otherwise have
exercised. In those circumstances, postimplementation bargaining is
not meaningful. By contrast, here, for the reasons stated, the union had
a meaningful, ongoing opportunity to bargain.
3
BERKLEE COLLEGE OF MUSIC
testing and thereby failed to prosecute its right to bar-
gain). Accordingly, we shall dismiss the complaint.3
ORDER
The complaint is dismissed.
Dated, Washington, D.C. August 26, 2015
____________________________________
Philip A. Miscimarra, Member
____________________________________
Harry I. Johnson, III, Member
____________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

3 We do not agree with the judge’s finding that the Union was ex-
cused from bargaining on September 5 because the Respondent did not
bring its attorney to that meeting. The Union may have assumed that
the Respondent would not bargain because the parties had negotiated
while their attorneys were present in the past, but this is not a valid
justification for any failure to request further effects bargaining on and
after September 5. Haddon Craftsmen, 300 NLRB 789, 790 (1990)
(union president’s subjective impression of respondent’s state of mind
“did not excuse the [u]nion from testing the [r]espondent’s good faith
with a demand to bargain”), revd. denied mem. sub nom. Graphic
Communications Workers Local 97B v. NLRB, 937 F.2d 597 (3d Cir.
1991). As noted above, the parties had previously engaged in effects
bargaining over course cancellations, and there is no evidence that
attorneys were present for those negotiations. To the contrary, the only
participants in that bargaining identified by former Union President
Scott were Scott, the affected instructor, and the Respondent’s provost.
Moreover, Schultz reasonably led the Respondent to believe that the
parties would bargain on September 5 when he informed the Respond-
ent that both parties should treat the September 5 meeting as “the meet-
ing that we should have had months ago surrounding these issues.” In
addition, implementation of the new policy continued until September
14, and the Union never sought bargaining either on or after September
5. See Medicenter, Mid-South Hospital, supra.
In light of our disposition of this case, we do not pass on the judge’s
findings with regard to whether the new class size minimum was a
substantial and material change in terms and conditions of employment,
or whether the Union waived its effects-bargaining rights contractually
or by its conduct. Finally, for the reasons stated by the judge, we reject
the Respondent’s contention that this dispute should be deferred to
arbitration.
Emily Goldman, Esq., for the Acting General Counsel.
James W. Bucking, Esq. (Foley Hoag LLP), for the Respondent.
Haidee Morris, Esq. (AFTMA), for the Charging Party.
DECISION
STATEMENT OF THE CASE
SUSAN A. FLYNN, Administrative Law Judge. This case was
tried in Boston, Massachusetts, on April 17 and 18, and May 3,
2013. The Union filed the charge on September 24, 2012, and
the Acting General Counsel issued the complaint on December
31, 2012.
The complaint alleges that Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act) by
failing and refusing to bargain collectively and in good faith
with the Union when it unilaterally made a policy change. The
Respondent filed an answer denying the essential allegations of
the complaint and raising several defenses.1
After the trial, the Acting General Counsel and Respondent
filed briefs, which I have read and considered. Based on the
entire record in this case, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a private nonprofit coeducational institution of
higher learning incorporated under the General Laws of the
Commonwealth of Massachusetts with its primary place of
business in Boston, Massachusetts. During the calendar year
ending December 31, 2012, which is representative of its annu-
al operations, Respondent received gross revenues from all
sources (excluding contributions which are, because of limita-
tion by the grantor, not available for use for operating expens-
es) in excess of $1 million. In conducting its operations during
the calendar year ending December 31, 2012, Respondent pur-
chased and received at its Boston campus goods valued in ex-
cess of $50,000 directly from points outside the Common-
wealth of Massachusetts. Accordingly, I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
I also find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.

1 The Respondent argued that this case should be deferred and re-
ferred to arbitration, as art. XI of the collective-bargaining agreement
(CBA) currently in effect provides for a grievance/arbitration proce-
dure. (Jt. Exh. 2.) When a party’s action presents questions about both
the interpretation of a CBA and legal obligations under the Act, the
Board will frequently defer to the arbitration procedures contained in
the parties’ CBA. Collyer Insulated Wire, 192 NLRB 837 (1971), and
United Technologies Corp., 268 NLRB 557 (1984). However, there is
no alleged breach or misapplication of the contract; nor is there a dis-
pute as to the interpretation of any portion of the contract, as the terms
of the CBA are clear. It is silent as to the matters at issue. Only statu-
tory obligations under the Act are in dispute. Therefore, it is not ap-
propriate to refer this dispute to arbitration.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. ALLEGED UNFAIR LABOR PRACTICES
The Facts
Background
Respondent, Berklee College of Music, located in Boston,
Massachusetts,2 was founded in 1945 as a private nonprofit
coeducational undergraduate institution of higher learning,
focusing on contemporary music. (Transcript (Tr.) 325.) In
addition to instruction in music, such as lessons in voice, ear,
harmony, and instruments, the College provides courses on the
practical or business aspects of the music industry. (Tr. 326,
327–328.) The school attracts students from around the globe.
Lawrence Simpson serves as both provost and senior vice
president for Academic Affairs. His staff includes Jay Kenne-
dy, vice provost and vice president for Academic Affairs; Rob
Rose, vice president for Special Programs; Rich Vigdor, direc-
tor of Academic Budgeting and Administration; and Jeanine
Cowen, vice president for Curriculum and Program Innovation.
(Tr. 327.) He also oversees the three academic divisions, each
led by a dean: Professional Performance (Matt Marvuglio),
Professional Education (Darla Hanley), and Professional Writ-
ing and Music Technology (Kari Juusela). The deans are re-
sponsible for the 37 departmental chairs and assistant chairs in
their respective divisions. (Tr. 326.)
The Collective-Bargaining Agreement
The faculty is unionized. The Berklee Faculty Union has
been the exclusive bargaining representative of the units since
1985. The most recent collective-bargaining agreement (CBA)
between the parties is effective for the period September 1,
2010, to November 3, 2013. (Joint Exhibit (Jt. Exh.) 2.) Ac-
cording to the CBA, the Union consists of two units: a full-time
and a part-time unit.3
The full-time unit includes all 9-month salaried teaching fac-
ulty employed by Berklee College of Music at its Boston, Mas-
sachusetts campus. Those faculty members’ salary levels de-
pend on their rank (as professor, associate professor, assistant
professor, or instructor), and they receive full health, dental,
and 403(b) benefits. (Jt. Exh. 2 at 50–66; Tr. 351.) Full-time
faculty are required to schedule office hours as well as attend
weekly department meetings and perform “Service to the Col-
lege” assignments. (Jt. Exh. 2 at 40, 41.)
The part-time unit includes all hourly teaching faculty em-
ployed during the academic year by Berklee College of Music
at its Boston, Massachusetts campus. They have either a 1-year
contract or a 3-year contract. Those on the 1-year contract
teach on an as-needed basis. They have no salary guarantees
and are paid only for the teaching units credited for classes
they teach, as well as for office hours and weekly department
meetings. (Jt. Exh. 2 at 1, 45–46.) They may be eligible for
partial health benefits. Those on a 3-year contract are guaran-
teed a minimum of 13.5 teaching units per semester, as well as
full benefits, and are paid for office hours and department meet-
ings. (Jt. Exh. 2 at 34; Tr. 51, 350.)

2 There is also a satellite campus in Valencia, Spain.
3 Of the roughly 580 faculty members, approximately 40 percent are
full time and 60 percent are part time. (Tr. 72).
Part-time faculty are not guaranteed employment for any
subsequent semester, except as provided in the contract. For
example, a part-time faculty member who has taught 27 or
more teaching units per academic year for 3 consecutive aca-
demic years (and has received satisfactory performance evalua-
tions each such year) will receive a contract to teach 27 or more
teaching units per academic year for the next 3 consecutive
academic years. Those 3-year contracts will continue to be
renewed provided the faculty member maintains a teaching
schedule of 27 or more teaching units per academic year. (Jt.
Exh. 2 at 14, 21.)
Faculty workload is calculated according to weighted teach-
ing units. Classes are weighted as follows. Classes such as
instrument lessons, where there is no outside work or prepara-
tion, are paid 1 teaching unit per hour. If there is some but
limited outside work, the faculty member is paid 1.18 teaching
units per hour. However, if there is a great deal of preparation
required as well as time spent grading, such as for lecture clas-
ses, the faculty member is paid 1.25 teaching units per hour.
(Jt. Exh. 2 at 38; Tr. 89–90.)
The CBA covers faculty working conditions, including the
maximum number of consecutive hours per day an individual
can teach, and references maximum student enrollment for
classes. (Jt. Exh. 2 at 35–37.) However, the college determines
what courses will be offered; what faculty member will teach
what course, regardless of the instructor’s preferences or spe-
cialty; when the course will be taught; and where it will be
taught. (Jt. Exh. 2 at 35, 38, 44, 46.)
The CBA contains a “Management Rights” clause, article
XXXIV:
A. All management rights, powers, authority and functions,
whether heretofore or hereafter exercised, and regardless of
the frequency or infrequency of their exercise, shall remain
vested exclusively in the Employer. It is expressly recognized
that such rights, powers, authority and functions include, but
are by no means whatever limited to, the full and exclusive
control, management and operation of its business and its af-
fairs, including the determination of the extent of its activities,
business to be transacted, work to be performed, location of
its offices and places of business and equipment to be utilized.
The Employer and the Union agree that the above statement
of management rights is for illustrative purposes only and is
not to be construed or interpreted so as to exclude those pre-
rogatives not mentioned which are inherent to management,
except insofar as expressly and specifically limited by the
provisions of this Agreement.
B. This Article applies to both full-time and part-time faculty
as described at Article I.
(Jt. Exh. 2 at 64.)
The CBA includes article XXXVII, “Waiver of Right,” at ar-
ticle XXXVII:
A. The failure by either party to insist in any one situation
upon performance of any of the terms or provisions of this
Agreement shall not be considered as a waiver or relinquish-
ment of the right of the Employer or the Union to future per-
formance of any such terms or provisions, and the obligation
5
BERKLEE COLLEGE OF MUSIC
of the parties to such future performance shall continue. It is
understood that neither party gives up the right to argue to
prove the assistance [sic] of a past practice.
B. This Article applies to both full-time and part-time faculty
as described in Article I.
(Jt. Exh. 2 at 67.)
It also contains an integration clause, “Pre-Existing Rights,
Privileges or Benefits,” article XXXVIII:
The parties acknowledge that during the negotiations which
resulted in this Agreement, each had the unlimited right and
opportunity to make demands and proposals with respect to
any subject or matter not removed by law from the area of
collective bargaining, and that the understandings and agree-
ments arrived at by the parties after the exercise of that right
and opportunity are fully and exclusively set forth in this
Agreement. Therefore, the Employer and the Union, for the
life of this Agreement, each voluntarily and unqualifiedly
waives the right, and each agrees that the other shall not be
obligated to bargain collectively with respect to any subject or
matter not specifically referred to or covered in this Agree-
ment and such expression is all-inclusive. This Agreement
constitutes the entire agreement between the parties and con-
cludes collective bargaining for its terms, subject only to a
mutual agreement to amend or supplement this Agreement.
(Jt. Exh. 2 at 68.)
Course Offerings
At the present time, the college offers 12 majors and the
course catalog includes over 1200 courses with 2600 sections.
(Tr. 329.) The college’s course catalog is developed by the
Curriculum Committee, which is headed by Jeanine Cowen,
vice president for Curriculum and Program Innovation. Vari-
ous members of the faculty, administration officials, and stu-
dents serve on the committee, including the three deans. (Tr.
250.)
The course offering list in the college catalog is reviewed
annually by the curriculum committee. Some courses are elim-
inated, some are added, and others are changed. (Tr. 230–231;
R. Exh. 4.) New courses are usually proposed by faculty; they
have to be approved by the department chair and division dean
prior to submission to the committee, that submits its recom-
mendations to the provost. (Tr. 252–253, 259, 328, 330.) A
course is deleted from the catalog for a number of reasons: it is
no longer current; the course content has been subsumed in
another course; the faculty member who taught it is no longer at
the college; the course has been replaced with another; it was
never run due to not being populated (reflecting no student
interest); or it was never scheduled. (Tr. 253–254, 255–256; R.
Exhs. 1, 2.) Course proposals are due by November 1 for the
following fall. The committee begins its work at that time,
determining which classes will be offered the following year.
Those decisions are constantly reviewed and may be changed
throughout the year, as circumstances dictate. (Tr. 257, 276.)
In February, the Academic Scheduling team, in consultation
with the chairs, creates a preliminary schedule for the fall se-
mester, depending on the needs of the students, the students’
interests (including their majors), faculty preferences and avail-
ability, and classroom availability. (Tr. 250, 274–275, 278–
279.)
Course offerings are posted in April for the fall semester.
(Tr. 276–277.) Currently-enrolled students may sign up at that
time, although changes may still be made to the course offer-
ings, for a variety of reasons.4 (Tr. 283, 288.)
After the initial April registration period, the department
chairs review the class populations and make whatever adjust-
ments are necessary, cancelling some classes and adding others,
so that students’ needs are met and faculty and classroom space
are used most efficiently. (Tr. 279–282.)
In August, the college has a good idea what the student pop-
ulation will be in September. (Tr. 283.) By that time, students
have registered, so there will be few additional changes. The
chairs and the committee assess the schedule again and make
additional revisions, such as cancelling classes that are not
going to be viable due to low population or adding needed clas-
ses. (Tr. 283–284,) Classes may be canceled any time up to
the end of the drop/add period (the end of the first week of
classes).5 (Tr. 289, 293.) Even classes that are reasonably well
populated may be cancelled if, for example, the instructor was
needed to teach another class. (Tr. 289.)
The college established maximum and minimum numbers of
students for each class, based on the nature of the class, so the
students would receive the greatest pedagogical benefit. (Tr.
261–262.) These numbers were included in all new course
proposals presented to the curriculum committee. (Tr. 217,
230, 261.) However, maximums and minimums were treated
differently. Maximum class size is referenced in the CBA. (Jt.
Exh. 2 at 35.) The CBA does not specify the maximum size of
each class but states that those maximums are determined by
the senior vice president for academic affairs with input from
the faculty; that occurs when a proposed course is added to the
catalog. Article XXIV(C) provides that no class may be as-
signed more than 10 percent above that maximum size without
the prior approval of the affected faculty member. In general,
smaller elective courses had a maximum class size of 8–10
students; core courses, and larger electives had a maximum
class size of 15–19 students. (See GC Exh.16; Tr. 177, 268.)
The CBA is silent as to minimum class sizes. Cowen testi-
fied that, although each class had a set minimum, they had
ranged from 1 (for directed study or lessons) to 10. (Tr. 268.)
Further, they were flexible in application; they were not re-

4 Incoming freshmen do not select their own classes but are assigned
to classes by the college. (Tr. 278.)
5 Last minute changes to the number of registrants for a class create
a “snowball effect.” When a student registers for a different class,
leaving an opening in the class s/he was in, that may be filled by anoth-
er student who concurrently drops a class s/he had been in, leaving that
seat open. (Tr. 284, 285.) Additionally, incoming students are tested
and auditioned in September to determine their skill level, and to ensure
that they are placed in appropriate classes; those results can also affect
the number of students in a particular class. (Tr. 278–279, 286–288.)
Also, some students fail to register for school, dropping all classes. (Tr.
285, 291, 292–293.)
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quired to be met in order to run a class, but were presumed
optimal numbers.6 (Tr. 295–296, 301, 394.)
During Cowen’s tenure, the committee had been carefully
reviewing the minimums, and had begun applying the follow-
ing general standard: the minimum would be 33–35 percent of
the maximum number of students for the class. (Tr. 233–234.)
However, those numbers were not strictly adhered to when
deciding whether to cancel a class; exceptions could be and
frequently were made.7 Classes were often conducted despite
having fewer than the minimum number of students, normally
three or four. (Tr. 54, 60–62, 72–74, 260; R. Exhs. 3, 4.) In-
deed, some ran with but one student, even if it were not an in-
dividual instruction class such as instrument lessons. (Tr. 74,
417–418.) Classes were run below the minimums in instances
such as when the class was required for graduation, or was a
prerequisite for other sequential classes, or the class was only
offered periodically and the students may not have another
opportunity to take it; or the class may still be viable despite
not meeting the minimum; or there were few individuals quali-
fied to take the class; or it was a new prototype class that was
being “piloted.” (Tr. 56, 59, 264, 295–296, 300–301; GC Exh.
3.) Cowen testified that most classes, perhaps 85–90 percent,
routinely run with well over the minimum number of students,
closer to the maximum number. (Tr. 297.)
Change to Course Population Minimums
Changes to course populations were occasionally made when
a proposal for such was submitted to the committee. Further, in
recent years, the committee had taken the initiative to review
course populations when changes to a class were proposed that
did not involve minimums, in order to ensure that they were
appropriately set. (Tr. 265–266.) They especially scrutinized
courses that were similar in nature. (Tr. 267.)8 However, there
had been no broad, overall review of course population mini-
mums. (Tr. 272.) In May 2011, the curriculum committee
unanimously recommended to the Senior Vice President for
Academic Affairs and Provost Simpson that the required mini-
mums be changed to 33–35 percent of the established maxi-
mum course populations, thereby increasing many of them.
(GC Exh. 22.) The goal was to have more standardized mini-
mum course populations for “like” classes, with most mini-
mums at five or more students. (Tr. 233–234.) Cowen ex-
plained that, over time, as new courses were added to the cata-
log, the minimum numbers were not comparable to the num-
bers set for similar older courses already in the catalog. (Tr.
267, 273.) The committee felt there should be a minimum of
five or more students whenever possible, except for classes that
were, by their nature, smaller, such as a trio, and that mini-

6 Those minimums did not apply to individual instruction classes or
self-defined classes, such as trios or quartets. (Tr. 265–266.) Occa-
sionally, those classes ran with fewer students than defined, since the
instructor could play the missing instrument.
7 GC Exh. 23 reflects the number of students enrolled in all classes
that were canceled in the 2010/2011 and 2011/2012 academic years.
Most had two or fewer students enrolled.
8 In 2010, the Liberal Arts chair had requested that the minimums
and maximums for all courses in that department be standardized (the
“LART sweep”). (Tr. 271–272.)
mums of three made “no sense” other than in those limited
situations. Cowen explained that the committee discussed effi-
cacy of student learning and the student learning experience,
and the benefit of diversity of opinions in reaching the mini-
mum of five. (Tr. 235–236.)
Simpson accepted the recommendation to increase the course
population minimums.9 He testified that he wanted to create
uniform standards for the courses. (Tr. 335, 395.) The mini-
mums were developed by the curriculum committee with the
deans. He considered those minimums a guide that add struc-
ture, but are important for the students’ need for diversity of
experience and to introduce discipline into the curriculum. (Tr.
334, 335.) In addition, he was concerned about the premium on
space needed to conduct classes, and appropriate space for each
class. He corroborated the other witnesses’ testimony that clas-
ses were run and continue to be run although the registration is
below the course population minimums. (Tr. 334.)
The changed course population minimums were not pub-
lished in the spring of 2011, and no action was taken at that
time. Cowen testified this was because the classes for the fall
of 2011 had already been determined, and the curriculum for
spring 2012 was well underway, so fall 2012 was the earliest
the new policy could be implemented. (Tr. 297–298.) Cowen
testified that the change in minimum course populations was
not announced, that course minimums had never been an-
nounced. (Tr. 298.) Cowen testified that the course population
minimums were “just a framework. It’s a bar that makes our
administration of courses just a little bit easier to gauge . . . [I]t
gives us real data as to what the decisions are that we’re mak-
ing, rather than, you know, intuition and anecdote.” (Tr. 295.)
“[I]t’s an administrative tool. . . . We have to be able to make
determinations and be using this data to do that.” (Tr. 296.)
Further, “it’s just an administrative detail . . . it’s always been a
tool that has been used with Academic Scheduling and the
chairs. I send out big notices to chairs frequently about im-
portant things. It was seen as a tool to help us manage our
schedule and nothing more . . . (T)here was no expected impact.
There was no material change in the way we were going to do
our operations.” (Tr. 298.)
Likewise, Simpson testified that he did not notify the Union
of the new course population minimums because he did not
consider it a change, but “business as usual,” an “administrative
detail.” (Tr. 337.) Minimum course populations are not cov-
ered by the contract, and determining those minimums is a
management right. Since he did not consider there to be any
substantial change, there was no need to notify the Union. (Tr.
298, 312, 337.) Further, he did not believe that faculty were
negatively impacted. The minimums were objective standards;
however, they were not “set in concrete.” (Tr. 334, 397.)
Simpson explained that the deans are responsible for imple-
menting the policy in communication with their chairs.
Cowen testified that the curriculum committee did not con-
sider the budget when making its decisions; the role of the
committee was to consider pedagogy and the student experi-

9 The Acting General Counsel did not subpoena records of the new
course population minimums so these numbers are not included in this
record. (Tr. 218.)
7
BERKLEE COLLEGE OF MUSIC
ence. (Tr. 235–236, 261–262, 298–299.) Nor did the commit-
tee discuss the potential impact on part-time faculty.10 (Tr.
312.)
The committee has deans, chairs, faculty, and students as
members but it does not include a representative of the Union.
The committee does not consult the Union about its decisions,
and specifically did not consult the Union regarding the change
to the minimum course populations. (Tr. 312–313.)
On August 21, 2012, the change to minimum course popula-
tions was announced by Simpson, to be implemented that fall.
Simpson forwarded a spreadsheet prepared by the curriculum
committee to the three deans listing the new minimums for
each course.11 (Tr. 387–389, 394.) The deans advised their
department chairs, at least some of whom advised their faculty.
Individual class enrollments in their departments were reviewed
and recommendations could be made whether to cancel any
classes based on the new minimums. (Tr. 388–389; GC Exh.
2.)
Simpson’s Initiative to Reduce the Number of
Elective Courses
As provost, Simpson was concerned about the large number
of electives in the course catalog, that he felt were not added in
an efficient and disciplined manner. Approximately 200 new
electives had been added between 2008 and 2010. (Tr. 329–
330.) He also felt some of the courses were being run too fre-
quently. This created a challenge when scheduling classes, as
there was a premium on space, and there could be difficulty
assigning faculty to all those classes. In order to take better
control of the course offerings, he set a goal of reducing the
number of electives by 10 percent. (Tr. 331.) They would not
all necessarily be eliminated from the catalog, but could be
offered less frequently. (Tr. 420.) Class population over time
would be reviewed, to determine the level of student interest in
those classes, that would assist in deciding whether to cancel a
class.12
Simpson testified that he believed that development of the
curriculum must be disciplined, and that electives should be
given particularly close review. (Tr. 330.) He felt the school’s
catalog included too many electives that were not justified by
student interest. (Tr. 330, 331, 333.) If students were not sign-
ing up for courses, that indicated there was insufficient interest

10 The college attempted to find replacement classes for faculty
members whose classes were cancelled. In most, but not all, instances,
those efforts were successful. (Tr. 406.)
11 Simpson testified that the change to course population minimums
was not new information to the deans, since there had been ongoing
discussions about the issue, especially through the curriculum commit-
tee, of which the deans were members. (Tr. 389.) However, Dean
Juusela was the only dean present at the May 31, 2011 meeting when
the policy change was recommended. (GC Exh. 22.)
12 Class population is distinct from minimum course populations; it
is simply the number of students enrolled each semester. A decision
could be made not to offer a class for the semester or drop it from the
catalog even if it met the minimums, if it was discovered that, over
time, it had low populations and therefore little student interest. (Tr.
415.) Dean Marvuglio’s email response to Cecere, that his class was
canceled for “low population” despite having five students registered, is
an example. (GC Exh. 17, 18.)
to offer the class, or to offer it so frequently. This was im-
portant because classroom space was at a premium; it could be
challenging to schedule classes appropriately. Simpson wanted
to reduce the number of electives offered by 10 percent, down
to a total of about 1100. Those classes could be removed from
the catalog but, more likely, simply offered less frequently.
(Tr. 332.) He met with the deans and vice presidents in Aca-
demic Affairs, to discuss which of the 1200 classes should not
be offered that semester. (Tr. 332, 334). He insisted that the
curriculum committee’s recommendation to increase the course
minimums was “absolutely not” a budgetary issue and was
unrelated to this initiative. (Tr. 343, 335.) Rather, he wanted to
introduce more discipline, to better control the classes offered.
As Cowen testified, Simpson stated that factors considered
included whether a student needed the course to graduate, or
the student had a program need for the class. (Tr. 332–333.)
Faculty Responses to the Changes
On receiving notice of Simpson’s initiative to reduce elec-
tives, Kenn Brass, chair of the Professional Music Department,
sent an email to his department faculty members on August 17,
2012, advising them of some anticipated changes. (GC Exh. 4.)
He stated, in pertinent part:
I write this email with important information regarding course
scheduling for the ensuing Fall 2012 semester. Unfortunately,
a mandate from Academic Affairs has made it likely that
schedules will have to be modified for a good number of fac-
ulty.
Without going into too many particulars, following is what
we are looking at:
1) Part-time faculty who are not on a 3-year contract may
lose courses/teaching hours.
. . . .
5) Underpopulated sections (below the minimum) will be
cancelled for both part-time and full-time faculty.
That is all the information I am able to share for now. Indi-
vidual contact will be forthcoming to inform you of how these
changes will actually affect your Fall schedules as that infor-
mation becomes available. . . .
Anne Peckham, chair of the Voice Department, sent an email
to Joyce Lucia, a part-time associate professor, on August 17,
2012, regarding her fall schedule.13 (GC Exh. 32.) It stated, in
part:
Due to strict budget cuts enacted throughout the College of
Music, Matt Marvuglio14 has asked Chairs to cut underpopu-
lated classes in all PPD course offerings for Fall 2012. Your
classes, PSVC 131-001, PSVC 231-001, PSVC 232-001, are
being removed from your schedule this Fall. . . .
Lucia responded, in part:

13 See R. Exh.10 for the college’s record of student enrollment (2) in
her American Diction class when it was canceled. (Tr. 304–305.) The
class had had a minimum of 4 in 2011. (Tr. 307; R. Exh. 11.)
14 Dean of the Professional Performance Division.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[F]or the PSVC 131-001, I simply need to move one person
from the other section, in order to populate the class of 3. As
far as PSVC 232—I understand that with a population of Ze-
ro, it would be cut. Lastly, Sean told me that diction would
probably populate since the Fall semester had so many incom-
ing voice principals. . . .”
Peckham replied:
I’m sorry, but the decision has been made and is final. The
classes are cancelled. These are college-wide changes made
in conjunction with Larry Simpson, all the Deans and all the
Chairs.
Lucia had been scheduled to teach four classes (LHUM-100,
PSVC 231-100, PSVC 131-001, and PSVC 232-001). As of
August 17, the date the three classes were canceled, PSVC 231-
100 had three students registered; PSVC 131-001 had two; and
PSVC 232-001 had none.15 (GC Exh. 25, pp. 3, 5.) She was
not offered replacement classes for any of the three Voice clas-
ses she lost. (Tr. 450.) Therefore, she contacted Michael Ma-
son, assistant chair of the Liberal Arts Department, seeking a
replacement class. She obtained a second LHUM-100 class
(Artistry, Creativity, and Inquiry Seminar). (Tr. 450.) She
testified that is a much more demanding class than the Voice
classes that were canceled. (Tr. 451–454.)
Subsequently, shortly after Simpson’s August 21 notice to
the deans of the change in course population minimums, the
following emails were sent.
Darla Hanley, dean of the Professional Education Division,
sent an email to her department chairs on August 21, 2012.
(GC Exh.16.) Attached was a list of the courses and number of
registrants. That attachment indicated prior minimums of three
to five students for most classes, and new minimums of five to
seven students.
I learned today that course minimums have been increased for
the fall semester (attached). Please review individual class
enrollments for your department—now in light of these ad-
justments—and let me know your thoughts about canceling
any sections. We are still striving to meet the requested budg-
et reductions. . . .
Suzanne Hanser, chair of the Music Therapy Department,
then sent an email to her department faculty on August 29,
2012, advising them of important policy changes, and attaching
a copy of “Academic Policy Changes,” dated August 28, 2012.
She indicated that no classes in that department were affected
that semester. (GC Exh. 15.)
On August 21, 2012, Brass sent another email advising his
department that the minimum number of registrants had been
raised for certain classes. (GC Exh. 5.)
Well, another bomb has been dropped—MINIMUM
ENROLLMENT HAS BEEN RAISED TO SEVEN (7) FOR
NEARLY ALL COURSES! What this now means is that
courses are in jeopardy that were not before.

15 Brass testified that the course had historically low populations but
had been “shored up” in the past. (Tr. 460.) Lucia testified that had
been accomplished by moving students from one section to another.
(Tr. 448.)
Having only learned about this a couple of hours ago, I do not
know where all the Pro Music courses stand. Contact will be
made with you tomorrow as I gather further information.
On August 22, 2012, Brass sent an email to Tom Stein, a
professor in the Professional Music Department. (GC Exh. 6.)
It read, in pertinent part:
. . . Further, this situation is an ever-moving target. I am not
sure if you read my latest email from last night, but a new
wrinkle has been added. Minimum population for nearly all
classroom instruction has been raised to seven (7)! So, many
more courses are in jeopardy than we knew of just a day ago.
It also means that it will be the part-timers who will suffer as
the college looks to assign full-timers to the max. I truly be-
lieve some part-timers could even lose their total teaching
schedules less than three weeks before classes begin!
Brass sent an email to Linda Gorham, a part-time professor
in the Professional Music , on August 23, 2012, regarding one
of her classes, “Subject: Bad News!”16 (GC Exh. 29.)
I am so sorry, but it looks as if we will not be able to offer the
PM-320 course for the Fall. This of course is due to the re-
cent change that raised course minimum populations from 3
to 7. . . .
Gorham’s PM-320 class, Investment Principles for Profes-
sional Musicians, had previously had a minimum course popu-
lation of three.17 There had been three students registered for
the class as of April 2012, when it was initially canceled.18 It
was reinstated but those three students did not re-register for it.
Another three students were registered in August when it was
finally canceled. (GC Exhs. 27–29; R. Exh. 12; Tr. 207–208,
241–242, 309.) Cowen testified that minimum course popula-
tion was not the reason for cancelling that class but she could
not explain why Gorham’s class was canceled.19
Brass testified that he misspoke in his emails, regarding can-
celling classes for not meeting the minimum populations. He
said that, in fact, he did not know how the new policy was be-
ing implemented. (Tr. 461.) He noted that underpopulated
courses continue to be run if a student needs it or it is a popular
class. (Tr. 461–462.)
Gorham was not offered a replacement class. However, on
August 28, Michael Mason, assistant chair of the Liberal Arts

16 See R. Exh. 12 for the college’s records of her course cancella-
tions for fall 2012. (Tr. 309.)
17 Gorham testified that her normal schedule is to teach one section
of PM-320 and three sections of PM-310, Financial Management for
Musicians per semester. (Tr. 429.)
18 Gorham explained that it appeared the class was canceled in April
due to a clerical error; a prototype class that she had was supposed to be
canceled. (Tr. 432–433.)
19 Cowen thought perhaps it was canceled because Gorham was
qualified to teach a core class (LHUM-100 and LHUM-400), but this
was speculation on her part and, in fact, is incorrect. (Tr. 205, 208–
209; GC Exh. 29.) She testified that Gorham was requested to teach a
section of the core class at each level, LHUM-100 and LHUM-400 but
that is not supported by the evidence. (Tr. 205, 290–291, 459.) She
then conceded that she did not know the details of the replacement class
assignment. (Tr. 205–206.)
9
BERKLEE COLLEGE OF MUSIC
Department, sent an email to a group of 18 faculty members,
including Gorham, advising that two sections of LHUM-400,
Professional Development Seminar, were available. (GC Exh.
30; Tr. 290.) Initially, she offered to take one of the classes,
but withdrew once she realized she had misread the posting,
thinking it was LHUM-100 (Artistry, Creativity, and Inquiry
Seminar) for incoming students, rather than a sixth semester
professional planning course for musicians. She explained that,
as a financial planner rather than a musician, she did not feel
well qualified to teach LHUM-400 despite having taken train-
ing to teach that class. (Tr. 411, 435–437).20 She discussed her
reluctance to teach the LHUM-400 class with Brass and the
possibility of teaching LHUM-100 at some future point in time.
(Tr. 436, 459.)
Ron Savage, chair of the Ensemble Department,21 sent an
email to the Ensemble faculty on September 4, 2012, advising
them of his knowledge of the situation. (GC Exh. 7.) Savage’s
email read, in pertinent part:
A number of you have contacted Sean and me about class
cancellation concerns and the sudden change in ensemble
population minimums.
As of today Tuesday 9/4/2012 NO ensembles, PS courses or
Harmonic Consideration classes have been cancelled and the
Dean has been supportive of keeping these open until the end
of placement. At the end of placement, low populated classes
will be cancelled as they have been in the past.
There have been changes to the minimum populations in a
small number of classes. 17 (ensembles and PS courses) in
total. These changes mostly affect the big bands and choirs
moving from a minimum population of 4 to a minimum of 7.
Several small band ensembles changed from a minimum of 4
to 5 and PS courses changed from a minimum of 4 to 7.
. . . .
At the end of placement before cancelling low populated en-
sembles, I will first look at the functionality of the instrumen-
tation of said band before making a final decision to cancel.
Allan Chase, chair of the Ear Training Department,22 sent an
email to his department faculty on September 4, 2012. (GC
Exh. 2.) Among other things, he noted:
Late this summer, some changes have been instituted to help
Academic Affairs meet its budget. Chairs and leadership dis-
cussed these in late summer and the details have just become
available. Most of these changes will have no impact on Ear
Training classes or faculty.
One change is in the minimum number of students per sec-
tion. Core classes and the larger electives with maximum

20 Respondent argued that Gorham could have taught the class, and
therefore was not adversely affected by the cancellation of her original
class. However, while Gorham did withdraw from consideration, the
Respondent did not establish that Gorham would have been assigned
the class in any event, as 17 other instructors received that notice as
well.
21 In the Professional Performance Division.
22 Also in the Professional Performance Division.
class sizes of 15 to 18 now have a minimum population of 7.
Electives whose maximum population is 8 or 10 (PFET clas-
ses, for example), now have a minimum of 4. Classes whose
maximum is 12 (a few electives) have a minimum of 5. In the
past, the minimums were 3 for older courses, and 5 for some
of the more recently created electives.
In Ear Training, we’ve had only two or three sections run per
semester that would be affected by this change of minimums,
mostly in specialized electives. I can’t be 100% sure until the
numbers are final, but at present, I don’t expect anyone in Ear
Training to lose teaching hours due to these higher mini-
mums. We’re watching enrollments closely each day to try to
avoid any loss of classes for students and faculty. . . .
Union Response to the Changes
The union president is Willis (Jackson) Schultz. Schultz is a
professor in Jazz Composition and an adjunct professor in sev-
eral other departments. Michael Scott was the past union presi-
dent23 and is a professor in the Harmony Department. Both
were on the union bargaining teams that negotiated the current
and all prior contracts with Respondent.
Both testified that, at least since 1978, the college’s mini-
mum course populations were three to four students. (Tr. 60–
62, 65, 72.) Nonetheless, classes often ran with fewer than the
minimum number of students enrolled. (Tr. 74.) Both Schultz
and Scott have had informal meetings over the years with the
various provosts, attempting to informally resolve disputes,
including those arising from cancellation of courses. (Tr. 61–
62, 65.)
Schultz became aware of the various policy changes when
various faculty members forwarded to him emails they had
received from their chairs. (Tr. 76, 78–80, 97–98; GC Exhs. 2,
4, 5, 6, 7.) He discussed with Scott the changes in minimum
course populations. They were concerned because it would
result in classes being cancelled and would affect some part-
time instructors. (Tr. 88, 89, 91.)
On August 23, 2012, Schultz sent an email to Simpson re-
questing that the parties engage in collective bargaining. (GC
Exh. 8.) While he objected to a number of the new unilateral
changes including cancelling classes earlier than had been done
in the past, he specifically noted his concerns about the new
policy regarding minimum course populations.
. . . . It has also come to our attention that the College has
suddenly changed the class population minimums in various
departments across the College. . . . The College has neither
given the Union notice nor offered to negotiate about the im-
pact of these changes. This is to demand that the College
cease implementation of these substantial changes until you
consult and negotiate with us over the impact of these or any
proposed changes on the employment of our faculty bargain-
ing unit members.
Simpson did not respond directly to the bargaining request,
but suggested that they “sit down at your earliest convenience
after Labor Day to discuss these matters.” (GC Exh. 8.)

23 From 1986 to 2011. (Tr. 52.)
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Schultz replied that such a delay was not acceptable, as fol-
lows. (GC Exh. 9.)
A meeting after Labor Day may work for you but it doesn’t
work for me and the many faculty potentially affected by this
unilateral change in working conditions. While you are en-
joying your time away from the College, many of our faculty
now can’t, worrying about loosing [sic] teaching hours, their
health benefits, and even their jobs. If you can agree to the
demand that the College will cease implementation of these
substantial changes as stated in my first email, then our meet-
ing can happen as you suggested, after Labor Day. Otherwise
I’m free tomorrow.
Simpson did not reply by email. The two spoke by tele-
phone the next day, August 25, 2012, following which Schultz
sent an email to the union executive committee regarding the
discussion. (Tr. 84–85, GC Exh. 10.)
Hi Gang. I just got off the phone with Larry and I am very
frustrated. It was a long conversation but I will narrow the fo-
cus here. He agreed that they screw [sic] up and should have
brought the union in before implementing these changes.
Sorry! He tried to assure me that they didn’t deliberately wait
till [sic] everyone was off campus but I wouldn’t hear of it.
He said no one is loosing [sic] their job when in fact, he just
hired some new faculty to add to our ranks. He said that noth-
ing was happening with regard to implementing these changes
because everyone was away to which I replied “then that
means you agree to the union’s demand to cease the imple-
mentation of these substantial changes.” He said I am free to
interpret it that way but that was not what he was saying. He
would not write a cease order to the Deans. He said these
changes were put in place to deal with the budget shortfall in
academic affairs not because of the over-leveraging on the
two projects. I wouldn’t buy it. Finally he said that because
everyone from his team is away, it would be impossible to
meet before Labor Day but that we could all meet on Tuesday
(9/4) or Wednesday (9/5). He said 9/5 would be better and
once we see their presentation we would all understand the
reasons why this is happening. We will, really? I doubt it. I
said that 9/4 would be better just because. I told him that the-
se actions have destroyed their credibility in the eyes of the
union and the faculty. Not a good move as we head into bar-
gaining . . . .
He followed up with a letter to all bargaining unit members
dated August 28, 2012, outlining his concerns. (GC Exh. 11.)
Eight of those nine concerns were based on Brass’ emails to his
department faculty. (Tr. 86, 125.)
While the cat’s away the mice will play. While we are all en-
joying the last few weeks before returning to begin the fall
semester, the Administration has been busy. Without any
consultation or negotiation with the Union, they have begun
to implement new policies which will impact all faculty but
especially our part-time faculty. Below are some of the high-
lights:
1) . . . .
2) Minimum enrollment has been raised to seven (7) for near-
ly all courses.
3) Underpopulated sections (below the minimum) are cur-
rently being cancelled for both part-time and full-time faculty.
4) Part-time faculty who are not on a 3-year contract may
lose courses/teaching hours.
. . . .
Though these changes affect all faculty, the impact on our
part-time faculty is devastating. They face the loss of hours as
well as the potential loss of health benefits, a 3-year contract
or worse, a job. . . .
Your Union just found out about this a few days ago and we
are looking at every possible angle to stop its implementation.
. . .
Simpson and Schultz agreed to meet, along with their teams,
on Wednesday, September 5, and to have a private discussion
before that, on Monday, September 3, 2012. (GC Exh. 12.)
Simpson wrote to Schultz, in pertinent part:
. . . But I really want to talk to you one-on-one before the
meeting on Wednesday. If you are open to it, I would like to
talk with you tomorrow. I know it is a holiday, but I think we
can make progress in advance of Wednesday if you and me
talk. I don’t want the meeting on Wednesday to be a “line
drawn in the sand” meeting. You and I have made progress
over the course of the last year and I don’t want our progress
to be thwarted. I have information to share with you that can
shed light on where we are, but we need to talk. . . .
That discussion occurred on Monday evening, after which
Schultz sent an email to his executive board members, who
would be attending the Wednesday meeting. (GC Exh. 13.) He
advised that the union attorney would not be present on
Wednesday since the college’s attorney was not coming, and
that:
He [Simpson] had my e-mail to faculty in hand and was quot-
ing from it. I think I got their attention. He referred to it as
inflammatory language and that I didn’t have the facts. I said
that if he had contacted the Union before implementing these
changes there may have been no need for the letter. The letter
I wrote was on him because he neglected to involve the Union
and that I stand behind everything I put in that letter. Anytime
you implement policy that affects faculty and you don’t in-
volve the Union, you now know what to expect. He asked me
about Wednesday’s meeting and I said they should treat it as
if it was the meeting we should have had a month ago. . . .
Attending the Wednesday meeting for the college were:
Simpson; Jay Kennedy, assistant provost; Mac Hisey, CFO;
and the three deans. Attending for the Union were: Schultz;
Danny Harrington, vice president; Wendy Rolfe, vice president
for part-time faculty; Jeff Perry, secretary/treasurer; Will
Sylvio, office manager; and Dennis Cecere, Professional Per-
formance faculty representative, and Richard Grudzinski, coun-
cilor-at-large. Perry took notes for the Union, summarizing the
discussion. (GC Exh. 14; Tr. 100, 156.) Schultz opened the
11
BERKLEE COLLEGE OF MUSIC
discussion, distributing a list of nine issues,24 and stating that
the purpose of the meeting was to discuss the changes in course
population minimums and course cancellations. (Tr. 100, 160.)
He then turned it over to Simpson to respond to the concerns.25
Simpson again agreed that he should have advised the Union in
advance of the policy changes, but felt that there was no viola-
tion of the contract. He addressed each of the nine points. He
explained that the changes were being made to address budget-
ary issues, since the college couldn’t increase tuition.26 (Tr.
100, 102–103, 160, 342.) He said that, of 2600 classes offered,
41 were cancelled that semester. Simpson reviewed the num-
ber of classes canceled in the prior four semesters (58, 89, 63,
and 56, from spring 2012 to fall 2010). He conceded that the
part-time faculty may lose hours since they work as needed.
He said that since the class maximum sizes cannot be increased,
this was the option chosen. He also acknowledged that faculty
had been cooperative in accommodating overpopulated classes.
The group discussed the college’s fiscal challenges and what
led to these policy changes. However, no bargaining occurred
and no agreement was reached, though the meeting ended ami-
cably. (Tr. 104–105, 341.)
Post Implementation of the Unilateral Change
On October 1, 2012, Simpson sent a “Provost Update” (GC
Exh. 24), informing all faculty that, with regard to canceled
classes:
We offered 2600 sections this fall semester and cancelled on-
ly 3% of the sections and these were due, in most cases, to
low enrollment.27
Although 61 classes ran in the fall of 2012, despite not meet-
ing their minimum course populations, 40 or 41 sections were
cancelled that were below the minimums. (Tr. 299, 338, 400;
R. Exh. 8.) In most instances, when an available faculty mem-
ber’s class was canceled, a replacement class or other campus
responsibilities were assigned. (Tr. 111, 406.) However, two
part-time faculty members, Lucia and Gorham, did not teach
replacement classes in the fall of 2012.28

24 See GC Exh. 11 for those issues. Since the nine issues were based
on Brass’ emails, certain of the topics pertained specifically to the
Professional Education, not the entire college. (Tr. 101.)
25 In addition to increasing class minimums, the college had also de-
cided to cancel classes before the end of the add/drop period, which
was the end of the first week of classes. The administration felt that
would give the faculty member whose class was canceled a better op-
portunity to take a replacement class, while the Union felt that the
action was premature since students still had time to sign up for the
class. (Tr. 340.) However, that change in policy is not an alleged
violation herein.
26 Whether the change in course population minimums was motivat-
ed by budgetary or purely pedagogical considerations is immaterial to
my decision.
27 That is distinct from not meeting course population minimums.
Also, the Acting General Counsel noted that 3 percent of 2600 is 78.
(Tr. 400.)
28 At trial, the Acting General Counsel contended that three bargain-
ing unit members had been affected, as far as had been determined at
that time. Later, on p. 21 of the Acting General Counsel’s brief, that
number was reduced to two: Lucia and Gorham. However, the evi-
Cowen testified that no courses were canceled solely because
the number of students registered fell below the new mini-
mums. (Tr. 200, 203, 239–240.) She stated that only courses
with zero registrants were canceled for that reason alone. (Tr.
204, 240.) Classes were canceled for a number of reasons; in
some instances, the faculty member may be needed for some
other assignment, or may be unavailable for personal reasons.
(Tr. 303.) And, as described in the findings of fact, there were
a number of factors that were considered when deciding wheth-
er to cancel or run a particular class.
The majority of classes canceled during the 2010–2011 and
2011–2012 academic years had student enrollments of two or
fewer when they were canceled. Indeed, only 6 of the 275
courses canceled during that 2-year period had more than 4
students enrolled. (GC Exh. 23; Tr. 311–112.)
It is impossible to determine the reasons for most class can-
cellations, since the college does not maintain records of those
reasons, only a record that the class was canceled. (Tr. 199,
203.) While the curriculum committee performs an annual
review of the courses offered, canceling a scheduled class due
to low registration is not a function of the committee. Rather,
the departments monitor classes and the decisions were made
on a case-by-case basis, by the chair, the dean, and Academic
Scheduling. (Tr. 256, 276.) Classes ran when registration was
above and below the course population minimums, and they
were canceled when registration was above and below the
course population minimums. (Tr. 303.) It is, therefore, un-
clear what exact role the minimum course populations played in
those decisions, although it was one factor.
Unfortunately, the September 5 meeting did little to clarify
the situation for the parties. Simpson and the management
team merely responded to the list of concerns raised by the
Union; the Union confused the change in minimum course
populations with the reduction in electives initiative. Simpson
testified that he could not respond well to some of the concerns
raised since he did not understand what some of the points
raised by the Union pertained to, and the Union could not ex-
plain the basis for those points, since they came from Brass’
emails. (Tr. 341–343.) Simpson was unaware of the source
until the trial, and testified that he felt sure that, due to his hith-
erto excellent relationship with the Union, the matter could
have been resolved earlier had that information been disclosed.
(Tr. 343.) I suspect that is true, based upon my observations of
the parties, but that lack of communication and consequent
misunderstanding has brought us here.
III. ISSUES PRESENTED
1. Did Respondent violate the Act by unilaterally making a
change that was material, substantial, and significant?
2. Did the Union waive its right to bargain either by contract
language or by its conduct during bargaining?

dence shows that the only faculty member who may have been affected
by the change in course population minimums as of the date of the trial
was Gorham. Lucia’s classes did not even meet the previous mini-
mums. No evidence was presented as to the impact of the change in
that policy on any other part-time faculty member although there may
have been additional effects in the fall 2013 semester.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IV. DISCUSSION AND ANALYSIS
A. Did Respondent Violate the Act by Unilaterally
Making a Change that was Material, Substantial,
and Significant?
An employer violates Section 8(a)(5) and (1) of the Act if it
change the wages, hours, or terms and conditions of employ-
ment of represented employees without providing the Union
with prior notice and an opportunity to bargain over such
changes. See NLRB v. Katz, 369 U.S. 736, 743, 747 (1962).
These are mandatory subjects of bargaining if the change has a
“material, substantial, and significant” impact on the terms and
conditions of bargaining unit members. Flambeau Airmold
Corp., 334 NLRB 165, 165 (2001), citing Alamo Cement Co.,
281 NLRB 737, 738 (1986); Carrier Corp., 319 NLRB 184,
193 (1995), citing United Technologies Corp., 278 NLRB 306,
308 (1986); Peerless Food Products, 236 NLRB 161 (1978);
Bethlehem Steel Co. (Shipbuilding Div.), 136 NLRB 1500,
1503 (1962).
Where such unilateral changes take place during the term of
a collective-bargaining agreement, the employer must obtain
the consent of the Union before it makes such a midterm modi-
fication. See Carrier Corp., supra; NLRB v. Katz, supra; St.
Agnes Medical Center, 287 NLRB 242 (1987); Wisconsin
Southern Gas Co., 173 NLRB 480 (1968); Oak Cliff-Golman
Baking Co., 207 NLRB 1063 1964 (1973), enfd. 505 F.2d 1302
(5th Cir.1977), cert. denied 423 U.S. 826 (1975).
An employer’s duty to bargain with the union over mandato-
ry subjects includes a duty to bargain about the effects on em-
ployees of a management decision that is not itself subject to
the bargaining obligation. See First National Maintenance
Corp. v. NLRB, 452 U.S. 666, 677, 679–682 (1981); Litton
Business Systems, 286 NLRB 817, 819–821, 1133–1134
(1987), enfd in relevant part 893 F.2d 1128, 1133–1134 (9th
Cir. 1990), cert. denied in relevant part 498 U.S. 966 (1990),
revd. in part on other grounds 501 U.S. 190 (1991); Holly
Farms Corp. v. NLRB, 48 F.3d 1360, 1368 (4th Cir. 1995), cert.
granted on other grounds 516 U.S. 963 (1995), affd. 517 U.S.
392 (1996). In most such situations, “[t]here are alternatives
that an employer and a union can explore to avoid or reduce the
scope of the [effects] without calling into question the employ-
er’s underlying decision. See Bridon Cordage, Inc., 329 NLRB
258 (1999).
The Board has held that “[a]n employer has an obligation to
give a union notice and an opportunity to bargain about the
effects on union employees of a managerial decision even if it
has no obligation to bargain about the decision itself.” Allison
Corp., 330 NLRB 1363, 1365 (2000), citing First National
Maintenance Corp. v. NLRB, 452 U.S. 666, 681–682 (1981);
Good Samaritan Hospital, 335 NLRB 901 (2001). The em-
ployer has a duty to give preimplementation notice to the union
to allow for meaningful effects bargaining. Allison Corp., su-
pra at 1366. It is well settled that Section 8(a)(5) requires ef-
fects bargaining to be conducted “in a meaningful manner and
at a meaningful time. . . .” First National Maintenance Corp. v.
NLRB, 452 U.S. at681–682. Effects bargaining must occur
sufficiently before actual implementation of the decision so that
the union is not presented with a fait accompli. Komatsu Amer-
ica Corp., 342 NLRB 649, 649 (2004).
I find that Respondent had the right to make the management
decision to change the course population minimums. However,
the potential effects of that decision are material, substantial,
and significant—cancellation of classes causing loss of income;
changed terms and conditions when a different replacement
course was taught. Those are mandatory subjects of bargain-
ing, and Respondent had an obligation to bargain with the Un-
ion over those effects. Respondent did not notify the Union of
the changes before implementation and refused to bargain or to
delay implementation when the Union made those requests.
Respondent’s argument that it has the right to make inherent-
ly managerial decisions, as it did in this instance, is well taken.
It is within its discretion to set course population minimums.
However, in this case, the Acting General Counsel does not
contend that Respondent was required to bargain about the
change in the course population minimums themselves. Rather,
the contention is that Respondent was required to bargain about
the effects of those changes, as they have the potential to im-
pact the wages and terms and conditions of employment of
many of the part-time faculty, which are material, substantial,
and significant effects. If a class is canceled for not meeting
the course population minimum, the part-time faculty member
may not be able to teach a replacement course and would thus
lose that income; a replacement course may not have the same
number of teaching units, so there would be a difference in
income; a replacement course may not be comparable to the
class originally scheduled;29 the individual’s 3-year contract or
eligibility to obtain a 3-year contract may be jeopardized if s/he
does not teach 13.5 hours per semester or 27 hours per academ-
ic year; and the individual may lose layoff protection or health
benefits.
The college had established minimum course populations for
all classes. Those numbers were set when the course was add-
ed to the catalog, and ranged from 1 to 10. The college
changed those minimums in August 2012, generally increasing
the minimums to five or more, depending on the course, except
for individual lessons or self-defined classes such as trios or
quartets. The Union was not notified of the changes in advance
of implementation, but learned of the changes through its
members, via email notifications to faculty when the policy
change was implemented in August 2012. Simpson refused to
bargain when Schultz demanded to bargain about the effects of
the new policy, and Simpson refused to delay implementation
of the new policy. He merely agreed to confer and explain the
reasons for taking the action.
Respondent argues that it had no obligation to engage in ef-
fects bargaining because the change in course population min-
imums was not material, substantial, and significant, but rather,
was inconsequential. It asserted that there was no real change
in policy and that no one suffered any ill effects. Although the

29 For example, the replacement course may be more demanding in
terms of time spent in preparation and grading. See, e.g., Kendall Col-
lege, 228 NLRB 1083 (1977) (violation found where school unilaterally
changed its past practice of consulting with faculty before publishing
class schedules).
13
BERKLEE COLLEGE OF MUSIC
Board has accepted such a defense where the disputed changes
to working conditions constitute only a minimal inconvenience
to employees, or are essentially de minimis (see, e.g., Berkshire
Nursing Home, LLC, 345 NLRB 220, 221 (2005)), that defense
does not apply here because the effects of this policy change
are material, substantial, and significant. The unilateral change
to the policy at issue herein has the potential to directly and
significantly affect union members’ wages and conditions of
employment, as cancellation of a course for not meeting that
minimum could deprive a part-time faculty member of income
for teaching that class if a replacement class were not available
or the replacement class had fewer teaching units, as well as
make him/her ineligible for a 3-year contract and for health
benefits and layoff protection, and may affect the faculty mem-
ber’s terms and conditions of employment, if the class were
more demanding as to preparation and grading responsibilities.
Respondent asserted in its brief that “each and every semes-
ter Berklee has . . . established and changed course minimums.”
Respondent also asserted that class population was but one of
several factors considered when deciding to cancel a class. It
further asserted that many classes continued to be run despite
being underpopulated.30 However, I do not find those argu-
ments persuasive, as discussed below.
It may be true that course population was, in most instances,
only one of several considerations when deciding whether to
cancel a class, but that argument still concedes that the policy
was a factor and had the potential to be the determining factor.
Respondent’s argument that this means it is not a unilateral
change triggering the duty to bargain is baseless. It was the
determining factor in the cancellation of Gorham’s class, as
discussed above in the findings of fact.
The assertion that minimums were changed on a regular ba-
sis is not supported by the record. (R. Exh. 1.) While they
were established on a regular basis when new classes were
proposed, they were changed only occasionally when some
change in the class was proposed. The 2010 “LART sweep” in
the Liberal Arts Department is not comparable to the policy
change here. (R. Exh. 6; Tr. 271, 272.)
Respondent’s position that there was no significant change in
policy is belied by Simpson’s refusal to delay implementation
of the policy as requested by the Union. Further, the various
emails between deans, chairs, and faculty (referenced above in
the findings of fact) indicate that those individuals considered
this a significant change in policy, whether it had an immediate
effect on scheduled classes or not.
The fact that many classes were canceled in the fall of 2012,
despite having more than the minimum number of students
registered is not material. Nor is the fact that 64 classes ran
with fewer than the minimum number of students. (Tr. 303.)
The fact remains that some classes—at least Gorham’s—were
affected by the change in course population minimums.
Moreover, as the Acting General Counsel pointed out, a
change in policy can constitute an 8(a)(5) violation when only
one employee is affected or when the amount of money in-

30 Respondent made much of the difference between low population
or underpopulation and minimum course populations. I understand the
distinction and it does not affect the outcome of this case.
volved is relatively small. See, e.g., Kentucky Fried Chicken,
341 NLRB 69, 84 (2004); Bonnell/Tredegar Industries, 313
NLRB 789, 790 fn. 5 (1994). Based on this record, one part-
time faculty member, Gorham, was adversely affected in the
fall of 2012 by the change in policy. There is no evidence that
any part-time faculty member was affected in the spring of
2013. It remains to be seen whether any faculty members are
affected in the fall of 2013 or thereafter.
Respondent argues that the Union did not request bargaining
over course population minimums, since it made no infor-
mation requests regarding minimum course populations; made
no proposals and requested no specific remedy or relief for any
faculty members either before or during the September 5 meet-
ing; did not request any further meetings to discuss course pop-
ulation minimums and took no further action to resolve the
issue of course population minimums. Given that Schultz’
email to Simpson demanding bargaining specifically references
the new course population minimums, this argument is rejected
as specious. (GC Exh. 8.)
Respondent argues that Berklee did not refuse to bargain but
did in fact sit down to bargain with the Union when requested,
and that the Union failed to discuss the course population min-
imum policy at the meeting. This is contrary to the evidence
including Simpson’s own testimony. Additionally, Schultz
testified that he knew from experience that neither side would
bargain in the absence of their attorneys, and that testimony
was uncontradicted. Since Simpson indicated that the college’s
attorney was not coming to the September 5 meeting, Schultz
saw no reason for the Union’s attorney to be present. (Tr. 97.)
No bargaining occurred at the September 5 meeting and the
Union did not again request bargaining since Simpson had re-
fused to delay implementation and had already implemented
the new course population minimums (a fait accompli). (Tr.
108.)
I find that the Union was denied the opportunity to bargain
over the effects of the policy change. Since the policy had
already been implemented and the Union had requested effects
bargaining, the Union was not obligated to continue to request
bargaining, since this was a fait accompli; the Union’s failure to
again request bargaining did not constitute a waiver of the right
to bargain. Bohemian Club, 351 NLRB 1065, 1067 (2007),
citing Tri-Tech Services, 340 NLRB 894, 895, 903 (2003); Gulf
States Mfg. v. NLRB, 704 F.2d 1390 (5th Cir. 1983).
B. Did the Union Waive its Right to Bargain Either
by Contract Language or by its Conduct
During Bargaining?
The employer has the burden to show that the union “clearly
intend[ed], express[ed], and manifest[ed] a conscious relin-
quishment” of its right to bargain. United Cable Television
Corp., 296 NLRB 163, 167 (1989); Intermountain Rural Elec-
tric Assn., 305 NLRB 783, 786 (1991), enfd. 984 F.2d 1562
(10th Cir. 1993); see also Regal Cinemas, Inc. v. NLRB, 317
F.3d 300, 314 (D.C. Cir. 2003). Waiver of a statutory bargain-
ing right is not lightly inferred from contractual language, and
the employer asserting this waiver bears the burden of estab-
lishing that the union has clearly and unmistakably relinquished
that right. Ohio Power Co., 317 NLRB 135, 136 (1995), citing
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983);
American Benefit Corp., 354 NLRB 129 (2010); Provena St.
Joseph Medical Center, 350 NLRB 808, 810–812 (2007); Hi-
Tech Cable Corp., 309 NLRB 3, 4 (1992), enfd. without op. 25
F.3d 1044 (5th Cir. 1994); Kingsbury, Inc., 355 NLRB 1195,
1206 (2010). Rather, there is a presumption that the Union has
not abandoned rights guaranteed by the Act. Pertec Computer,
284 NLRB 810, 817 (1987). The Board does not construe gen-
eral management rights and integration clauses as constituting
clear, unequivocal, and unmistakable waivers of statutory
rights. See Provena, supra at 822; Ohio Power Co., supra at
136, citing Johnson-Bateman Co., 295 NLRB 180, 184–185
(1989); Outboard Marine Corp., 307 NLRB 1333, 1338
(1992). Further, the Board has taken the position that the em-
ployer has an obligation to bargain over effects even though
language in the management-rights clause constitutes a waiver
of the union’s right to bargain over the decision itself. Good
Samaritan Hospital, supra.
Respondent argues that the union waived any right to bargain
over midterm policy changes by including the “Management
Rights” and “Pre-Existing Rights, Privileges or Benefits” (inte-
gration or “zipper”) clauses in the contract and by its conduct
during bargaining. However, I reject those arguments as not
supported by established case law.
In this instance, while comprehensive, neither the manage-
ment rights nor the integration clause makes reference to course
population minimums or the effects of management’s unilateral
decisions or to the Union’s rights to bargain over such effects.
Instead, the clauses are general in nature. Respondent contends
that those clauses, read together, demonstrate that any subject
not specifically included in the contract is an intentional omis-
sion. However, the Board has held that such broadly-worded
zipper clauses cannot be used as a “sword” to justify a unilat-
eral change without bargaining. American Benefit Corp, supra
at 18.
Waivers of statutory rights may be established through ex-
amination of the parties’ bargaining history, but only if the
issue has been fully discussed and consciously explored during
negotiations and the Union has consciously yielded or clearly
and unmistakably waived its interest. Ohio Power Co., supra at
136, citing Johnson-Bateman Co., supra at 185. At trial, Re-
spondent presented numerous past contract proposals and “talk-
ing points” in which the Union purportedly had sought to in-
clude provisions covering such subjects as the right to engage
in midterm negotiations, or cancellation of courses in order to
show that the Union had waived inclusion of such in the con-
tract. However, the argument fails. First, it has not been estab-
lished that the parties in fact negotiated over any of those pro-
posals as required to show they were “fully discussed and con-
sciously explored.” Second, some proposals pertained to
changing contract language but it is unclear what the original
language was since those contracts were not entered into evi-
dence. And third, none of those proposals concerned setting
minimum course populations or bargaining about the effects of
a change thereto.
I find that the current collective-bargaining agreement does
not contain an explicitly stated, clear and unmistakable waiver
of the Union’s right to engage in effects bargaining over the
change in the minimum course population policy. I further find
that the parties’ bargaining history does not establish that the
Union waived its right to bargain over the change in that policy.
I therefore find that Respondent has not met its burden of estab-
lishing that the Union waived its right to engage in effects bar-
gaining over this unilateral change in policy.
In summary, I find that the Respondent made a unilateral
change that is material, substantial, and significant and that the
Union did not waive its statutory right to bargain over the ef-
fects of that change. I conclude that Respondent’s conduct
violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By failing to afford the Union prior notice and an oppor-
tunity to bargain over the effects of its decision to change the
minimum course population policy in August 2012, Respond-
ent has violated Section 8(a)(5) and (1) of the Act.
4. The above unfair labor practice affects commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
Make-whole relief is not appropriate in effects bargaining
cases. See Fast Food Merchandisers, Inc., 291 NLRB 897,
899–902 (1988). The standard remedy in effects bargaining
cases is a limited make-whole Transmarine remedy, as clarified
in Melody Toyota. Transmarine Navigation Corp., 170 NLRB
389 (1968); Melody Toyota, 325 NLRB 846 (1998); Rochester
Gas & Electric Corp., 355 NLRB 507, 508 (2010); Electrical
Workers Local 36 v. NLRB, 706 F.3d 73 (2d Cir. 2013), petition
for cert. filed 81 U.S.L.W. 3566 (U.S. Mar. 28, 2013) (No. 12-
1178); Stevens International, Inc., 337 NLRB 143, 144 (2001).
A Transmarine remedy requires an employer to bargain over
the effects of its decision and to provide employees with lim-
ited backpay from 5 days after the date of the decision until the
occurrence of one of four specified conditions. See Transma-
rine, supra at 390.
The purpose of accompanying the order to bargain with a
limited backpay remedy is two-fold: it is “designed both to
make whole the employees for losses suffered as a result of the
violation and to recreate, in some practicable manner, a situa-
tion in which the parties’ bargaining position is not entirely
devoid of economic consequences for the Respondent.”
Transmarine, supra at 390. Making employees whole is the
lesser consideration of the two. “Secondly, and more im-
portantly, the Transmarine and other similar 8(a)(5) remedies
are designed to restore at least some economic inducement for
an employer to bargain as the law requires.” O. L. Willis, Inc.,
278 NLRB 203, 205 (1986). This recognizes that, in these
cases, the employees represented by the union have already
15
BERKLEE COLLEGE OF MUSIC
been affected, and the urgency of the situation triggering the
bargaining obligation has passed.
Effects bargaining cases typically involve an employer’s
failure to bargain over the effects of closing a facility, mass
layoffs, or otherwise removing bargaining unit work. However,
a Transmarine-type remedy may be ordered when a unilateral
change does not result in a loss of jobs but otherwise causes
economic losses to unit employees. Thus, in Rochester Gas &
Electric, above, the Board found appropriate a Transmarine-
type remedy where the employer had made a unilateral change
in the vehicle benefit that it afforded employees, resulting in
increased commuting costs. Likewise, in Good Samaritan
Hospital, above, a Transmarine-type remedy was appropriate
where the employer modified the number of employees as-
signed to work on a given shift. In Live Oak Skilled Care &
Manor, 300 NLRB 1040, 1041–1042 (1990), the employer
failed to notify and bargain with the union over the effects of its
decision to transfer ownership of its hospital.
Here, Respondent violated its obligation to provide the Un-
ion with prior notice and an opportunity to engage in timely
bargaining about the effects of its decision to increase the min-
imum course populations, potentially affecting the income of
certain employees in the bargaining unit (the part-time faculty).
Respondent’s unfair labor practice thus deprived the Union of
“an opportunity to bargain . . . at a time . . . when such bargain-
ing would have been meaningful in easing the hardship on em-
ployees” whose income was being cut. Transmarine, supra at
389. Had Respondent engaged in timely effects bargaining, the
Union may have been able to secure additional benefits for
affected employees. See Live Oak Skilled Care & Manor, 300
NLRB at1042 (1990) (“[I]t is reasonable to require that ‘the
employees whose statutory rights were invaded by reason of the
Respondent’s unlawful . . . action, and who may have suffered
losses in consequences thereof, be reimbursed for such losses
until such time as the Respondent remedies its violation by
doing what it should have done in the first place’”). It would
be pure speculation to try to ascertain the result that timely
effects bargaining would have produced. Further, in Transma-
rine, the Board recognized that, in these circumstances, merely
ordering Respondent to engage in effects bargaining would be a
pro forma remedy. Because Respondent has implemented the
policy change and thus relieved whatever pressures motivated it
to do so, “meaningful bargaining cannot be assured without
restoring some measure of bargaining power to the Union in
relation to the issue.” Rochester Gas, supra at 508.
Therefore, I will order that Respondent bargain with the
Berklee Faculty Union, on request, over the effects of its deci-
sion to change the course population minimum policy.
Further, I will order a limited backpay remedy designed to
make any affected bargaining unit members whole for any loss-
es they suffered as a result of Respondent’s failure to bargain
about the effects of its decision to increase the course popula-
tion minimums. Specifically, for each affected bargaining unit
member, Respondent shall pay backpay at the rate of their nor-
mal wages from 5 days after the date of this Decision and Order
until the occurrence of the earliest of the following conditions:
(1) Respondent bargains to agreement with the Union about the
effects of the change to the minimum course population policy;
(2) the parties reach a bona fide impasse in bargaining; (3) the
Union fails to request bargaining within 5 business days after
receipt of this Decision and Order, or to commence negotia-
tions within 5 days after receipt of Respondent’s notice of its
desire to bargain with the Union; or (4) the Union subsequently
fails to bargain in good faith. However, in no event shall this
sum be less than the affected employees would have earned for
a 2-week period at the rate of their normal wages. See Smurfit-
Stone Contractor Enterprises, 357 NLRB No. 144, slip op. at
5–6 (2011) (citing Transmarine Navigation Corp., supra).
Backpay shall be based on the earnings that the affected em-
ployees would normally have received during the applicable
period, and shall be computed in accordance with Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971), with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010).
Respondent shall file a report with the Social Security Admin-
istration allocating backpay to the appropriate calendar quar-
ters. Respondent shall also compensate the affected employees
for any adverse tax consequences of receiving lump-sum
backpay awards covering more than 1 calendar year. Latino
Express, Inc., 359 NLRB No. 44 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended31
ORDER
Respondent, Berklee College of Music, located in Boston,
Massachusetts, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to timely notify the Berklee Faculty Union and af-
ford it an opportunity to bargain over the effects of the new
course population minimum policy beginning in August 2012.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain collectively with the Union concern-
ing the effects of the increase in course population minimums
and, if an understanding is reached, embody the understanding
in a signed agreement.
(b) Make whole its employees for any losses they may have
suffered as a consequence of Respondent’s refusal to bargain
over the effects of its decision to increase course population
minimums, as set forth in the remedy section of this decision.
(c) Preserve and within 14 days of a request, or such addi-
tional 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 rec-
ords, timecards, personnel records and reports, and all other

31 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of money
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility in Boston, Massachusetts, copies of the attached notice.
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 1, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since about August 15,
2012.
(e) Within 21 days after service by the Respondent, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the steps
that the Respondent has taken to comply.
Dated, Washington, D.C. September 20, 2013
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT make changes in your wages, hours, or work-
ing conditions without first notifying and bargaining with the
Berklee Faculty Union, American Federation of Teachers, Lo-
cal 4412, AFT-MA, AFL–CIO (the Union), as the sole and
exclusive bargaining representative of our employees covered
by the 2010–2013 collective-bargaining agreement between the
Union and Berklee College of Music, over the effects of such
changes.
WE WILL NOT refuse to bargain in good faith with the Union
over the effects of our increase in course population minimums
on bargaining unit employees.
WE WILL NOT in any like or related manner interfere with
your rights under Section 7 of the Act.
WE WILL bargain with the Union over the effects of our deci-
sion to increase course population minimums.
WE WILL make all affected bargaining unit employees whole
as set forth in Transmarine Navigation Corp., 170 NLRB 389
(1968).
BERKLEE COLLEGE OF MUSIC