Part-Time Faculty Association at Columbia (Columbia College Chicago)

National Labor Relations Board - Administrative Judge Opinions

May 24, 2018

13-CB-165873 (N.L.R.B. May. 24, 2018)

JD–34–18
Chicago, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
PART-TIME FACULTY ASSOCIATION AT
COLUMBIA COLLEGE
and Case 13–CB–165873
TANYA HARASYM, et al., Individuals
and
PART-TIME FACULTY ASSOCIATION AT
COLUMBIA COLLEGE
and Case 13–CB–202023
CLINT VAUPEL, an Individual
and
PART-TIME FACULTY ASSOCIATION AT
COLUMBIA COLLEGE
and Case 13–CB–202035
COLUMBIA COLLEGE CHICAGO
Sylvia L. Posey and Catherine Terrell, Esqs.,
for the General Counsel.
Michael H. Slutsky, Esq.
(Allison, Slutsky & Kennedy P.C.),
for the Individual Charging Parties.
Alex Barbour, Esq. (Cozen O’Connor)
for Charging Party Columbia College Chicago.
Michael P. Persoon, Esq.
(Depres, Schwartz & Geoghegan, LTD.)
for the Respondent Union.
JD–34–18
2
DECISION
STATEMENT OF THE CASE
KIMBERLY R. SORG-GRAVES, Administrative Law Judge. On December 9, 2015, seven 5
individual charging parties (Charging Parties)1 filed Case 13–CB–165873 with Region 13
(Region) of the National Labor Relations Board (Board) alleging that the Part-Time Faculty
Association at Columbia College (PFAC or Respondent Union) had breached its duty of fair
representation in violation of Section 8(b)(1)(A) and (2) of the National Labor Relations Act
(Act) by failing to recognize and to apply the terms of the collective-bargaining agreement 10
between the Columbia College Chicago (College) and PFAC in effect from September 1, 2013 to
August 31, 2017 (CBA) to the employees at issue and failing to process their grievances pursuant
to that agreement.2
The charges raised unresolved issues of representation concerning whether the bargaining
unit in the CBA included the part-time teaching/faculty positions of employees of the College, 15
who are full-time staff, and who teach part-time, apart from their full-time staff positions
(FTST).3 To resolve these issues, the Region revoked its earlier dismissal of the petition in
representation Case 13–RC–146452, which was filed by the United Staff of Columbia College
(USCC). USCC represents the FTST in their capacity as full-time staff at the College and sought
to separately represent them as part-time faculty through Case 13–RC–146452 (USCC petition). 20
The Regional Director issued a decision (Regional Director’s decision) on August 30, 2016,
dismissing USCC’s petition in Case 13–RC–146452 on the basis that the FTST employees were
represented by PFAC in their capacity as part-time faculty and that the CBA barred a
representation election with regards to the FTST. PFAC filed a request for review and a motion
to stay the Regional Director’s decision with the Board. On February 14, 2017, the Board denied 25
PFAC’s request for review stating that “no party has argued that the petition should not have
been dismissed.” On April 19, 2017, the Region issued the consolidated complaint in the instant
matter.
On July 7, 2017, Clint Vaupel, an individual, filed Case 13–CB–202023 and on July 7, 2017,
the College filed Case 13–CA–202035. Both cases allege that PFAC had violated Section 30
8(b)(1)(A), 8(b)(2), and 8(b)(3) of the Act by obtaining an arbitration award that purported to
exclude the FTST employees from the bargaining unit covered by the CBA (Unit) contrary to the
Regional Director’s decision, filing a federal court case to enforce that arbitration award, filing a
lawsuit to compel arbitration of grievances alleging that the College failed to exclude FTST from
the Unit and/or refused to deny the FTST course assignments under the CBA, and insisting that 35
FTST interests be excluded from the negotiations for a successor agreement to the CBA.

1 The named Charging Parties are Tanya Harasym, Larry Kapson, Eric Koppen, Weston Morris, Anthony Santiago,
Jill Sultz and Clint Vaupel, but the charges were filed on behalf of all similarly situated employees.
2 As discussed more below, the Charging Parties also filed Case 13–CA–165872 against the College. The College
entered into an informal Board settlement agreement in Case 13–CA–165872, and it was withdrawn from these
proceedings.
3 FTST is the acronym used by the parties to refer to the employees at issue and is derived from the phrase “Full-
Time Staff, who Teach part-time.”
JD–34–18
3
On May 25, 2017, the Charging Parties filed a motion in limine seeking to prevent any party
from presenting evidence or re-litigating in the instant unfair labor practice proceedings the issue
of whether the FTST are included in the Unit that was the subject of the underlying Regional
Director’s decision in Case 13–RC–146452. On September 5, 2017, I issued an order granting
the motion in limine. (GC Exh. 1(y).)5
On September 29, 2017, the Region issued the second consolidated complaint in this matter
to which PFAC and the College filed timely answers. (GC Exh. 1(z), 1(bb), and 1(cc).)
Before the start of the hearing in this matter on November 28, 2017, the College entered into
an informal Board settlement agreement of the provisions of the second consolidated complaint
which alleged that the College violated the Act. Based thereon, I granted General Counsel’s 10
unopposed motion to withdraw the portions of the second consolidated complaint that reference
the College or Case 13–CA–165872, including in the caption.4
I heard this matter on November 28 and 29, 2017, in Chicago, Illinois, and I afforded all
parties a full opportunity to appear, introduce evidence in accordance with my order granting the
motion in limine, examine and cross-examine witnesses, and argue orally on the record. 15
Respondent Union did not call any witnesses. By stipulation of the parties, Respondent Union
submitted documentary evidence into the record without the documents being authenticated by a
witness. General Counsel, Respondent Union, and the Charging Parties filed posttrial briefs in
support of their positions on January 19, 2018.5
20
After carefully considering the entire record, including my observation of the demeanor of
the witnesses, I find that
FINDINGS OF FACT
Jurisdiction and Labor Organization Status25
The College is a nonprofit education corporation with its main administrative office and a
place of business located in Chicago, Illinois (the campus), where it engages in the operation of a
private not-for-profit college. In conducting its operations, the college annually purchases and
receives goods valued in excess of $5,000 directly from points outside the State of Illinois.
PFAC admits, and I find, that the College has been an employer engaged in commerce within the 30
meaning of Section 2(2), (6), and (7) of the Act. (GC Exh. 1(z), 1(bb), and 1(cc).) PFAC admits,
and I find, that it has been a labor organization with the meaning of Section 2(5) of the Act. (GC
Exh. 1(z), 1(bb), and 1(cc).) Based on the foregoing, I find that this dispute affects commerce,
and that the Board has jurisdiction of this case, pursuant to Section 10(a) of the Act.
35

4 I specifically granted General Counsel’s to withdraw GC Exh. 1(a) and 1(b), all portions of the second
consolidated complaint in GC Exh. 1(z) that refer to Case 13–CA–165872, including in the caption and the
allegations in paragraph VII and all references to paragraph VII. (Tr. 10–13.)
5 The College did not submit a brief.
JD–34–18
4
UNFAIR LABOR PRACTICES
1. Background
The College operates a private university in Chicago, Illinois, which enrolls approximately
9,000 students per semester and offers three primary fields of study: fine and performing arts,
media arts, and liberal arts and sciences. The college employees approximately 220 full-time 5
faculty, 700 to 1000 part-time faculty, 350 full-time staff, 350 part-time staff, and 34 dual
function employees, who hold both a part-time staff position and a part-time faculty position.
(Tr. 66–67; GC Exh. 13, pg. 3.)
On March 4, 1998, PFAC was certified as the bargaining representative for the following
employees of the College: “All part-time faculty members who have been employed as part-time 10
faculty members for at least” [language clarifying the amount of semesters and college credit
hours an individual must teach before qualifying as a part-time faculty bargaining unit member];
but excluding, inter alia, “Columbia College full-time staff members.”
On September 24, 2000, the College and PFAC amended the language of the unit description
to include “all part-time faculty members who have completed teaching at least one (1) semester 15
at Columbia College Chicago, excluding,” inter alia, “Columbia College Chicago full-time staff
members” (Unit).6 (GC Exh. 3, pg. 1.)
The employees at issue in the instant matter are the full-time staff, who also moonlight as
part-time faculty aside from their full-time staff positions, referred to as FTST. For example,
since about 2003, Charging Party Clint Vaupel (Vaupel) has overseen the College’s facility in 20
which cinema and television arts are taught. Vaupel ensures that the students, teachers, and
classrooms have the necessary gear to complete the course work. Vaupel addresses issues that
arise with the gear such as audio/video technical issues. This is a full-time staff position for
which he is paid a modest salary. His position does not require the teaching of a course. (Tr.
195–196.) Over about the last 9 years, Vaupel has also contracted on a part-time basis with the 25
College to teach between 1 and 3 courses each semester and over that time has taught more than
100 college credit hours. (Tr. 198; GC Exh. 6, pg. 3.)
The Unit description remained unchanged in the successive collective-bargaining agreements
between PFAC and the College the most recent of which was the CBA. (GC Exh. 3, pg. 23.)
Before the CBA, which became effective on September 1, 2013, the College assigned courses 30
fully at its discretion. (Tr. 68.) The CBA provided a new structure for the assignment of courses.
First the College assigns courses to full-time faculty and then assigns the courses that full-time
staff with teaching responsibilities as part of their staff positions must teach.7 The remaining
courses are assigned by the College through a new tiering/seniority system designed to provide a
specific order and number of courses offered to Unit members based upon their tier/seniority 35
measured in the following ranges of college credits taught: 200 or more (tier A plus), 51 to 199
(tier A), 33 to 50 (tier B), completed one semester of teaching but have obtained 32 or less
credits (tier C). Once the required offers of course assignments have been made pursuant to the

6 USCC has represented the College’s full-time and part-time staff employees with regards to their staff positions
since July 11, 2006. (GC Exh. 13, pg. 5.)
7 Appendix V of the CBA lists nineteen full-time staff positions for which teaching is a requirement and the number
of courses required for each position. (GC Exh. 3, pg. 31.)
JD–34–18
5
tiering/seniority system, the College can offer course assignments to other qualified persons. (GC
Exh. 3, pgs. 12–13.) In applying this system, the College defaulted all of the FTST to the lowest
tier of 32 or less credits regardless of the number of credits they had taught. (Tr. 69.)8
Vaupel testified that he and other FTST heard rumblings as early as November 2013 that
they were excluded from the Unit, which would affect their tier/seniority for course assignments. 5
(Tr. 224.) Vaupel also admitted to being aware of a May 22, 2014 letter sent by the College to
individuals named in the letter in response to a request for recognition of FTST in the Unit. In
the letter the College stated its position that at that time FTST were not a part of the Unit. (Tr.
244; RU Exh. 1.)9
Because of the lead time needed in making the next semester’s course assignments, the 10
tier/seniority system was not fully implemented until the course assignments for the summer/fall
2014 courses. (Tr. 70–71.) Under the 2013–2014 CBA tier system, the College treated the FTST
as non-Unit members and did not assign them pursuant to tier/seniority levels A or B. The
College instead was assigning FTST courses pursuant to tier C, regardless of the number of
credit hours they had previously taught. Vaupel testified that he experienced a delay in being 15
assigned courses based on his past experience and for a time period received fewer assignments
than he had in the past. (Tr. 201.)
From the time that the College was required to implement the tier system, PFAC filed a
series of grievances repeatedly disputing the College’s assignment of courses pursuant to the
CBA for various reasons including the College’s assignment of courses to FTST. 20
Respondent Union did not call any witnesses, but by its counsel’s questions on cross-
examination of the College’s in-house counsel for labor relations Terence P. Smith, Respondent
attempted to get Smith to testify that PFAC had not directly asserted that FTST were excluded
from the Unit in processing these grievances. Smith was unable to recall specific statements to
support his understanding that PFAC contended that FTST were improperly assigned courses 25
because they were excluded from the Unit in the grievances, but consistently testified that that
was his understanding. (Tr. 120-121.) I credit Smith’s testimony in this regard because the
language of the grievances discussed below corroborates his testimony.
On September 17, 2014, PFAC filed a class action grievance with the College alleging,
among other things, that “bargaining unit work was still being given to non-bargaining unit 30
members other than those stipulated in the [CBA]. More specifically, a database was created
showing all of the teaching assignments given to Full-Time Staff.” (Tr. 98; GC Exh. 23A-B, pg.
2.) A second similar class action grievance was filed on September 17, 2014, also alleging that
the College had improperly assigned courses to non-bargaining unit members. (Tr. 99–102; GC
Exh. 24A-B.) 35

8 The grievances filed by PFAC evidence that it also disputed the College’s application of the tier system for reasons
other than its position that the FTST are not in the bargaining unit.
9 At the hearing, Respondent Union asserted the affirmative defense that the statute of limitations had run on the
allegations in Case 13–CB–165873. Therefore, Respondent Union was allowed to present evidence, which would
otherwise be excluded by my order granting the Charging Parties’ motion in limine, for the limited purpose of
supporting this defense.
JD–34–18
6
On December 18, 2014, PFAC filed a class action grievance alleging that the College
violated the CBA by improperly assigning courses, in part, as evidenced by “individuals who are
Full-Time Staff but are not listed on Appendix V as those with teaching as a part of their job
description yet are assigned PFAC bargaining unit work.” (Tr. 102–104; GC Exh. 25.)
On February 13, 2015, the USCC filed Petition 13–RC–146452 seeking to represent the 5
FTST, whom USCC already represents in their capacity as full-time staff, in their capacity as
part-time faculty. (GC Exh. 4.) The Region investigated the petition and issued a show cause
notice to both the College and PFAC. Throughout its response to the show cause notice, PFAC
repeatedly contended that it represented the part-time faculty, which included any full-time staff
who moonlighted as part-time faculty consistent with the CBA. (CP Exhibit 2, pgs. 12–13). 10
Based upon the College’s and PFAC’s responses to the show cause order, on April 28, 2015, the
Region dismissed the petition stating:
The facts remain that when these employees are not acting in their capacity as
staff employees, they are part-time faculty, the certified unit includes all part-time
faculty, and the PFAC and [the College] both acknowledge that all part-time 15
faculty are included in the existing Unit. In conclusion, it is determined that there
is no question concerning representation for the petitioned-for employees. (GC
Exh. 5, pg. 2; CP Exhs. 1 and 2.)
2. PFAC’s refusal to represent the FTST
Based upon the determinations in the dismissal letter of the USCC petition on May 20
11, 2015, the College sent PFAC a list of FTST with its calculations of the credit hours
each FTST had accrued and asserted the College’s belief that pursuant to the Region’s
determinations in the dismissal of the Petition the FTST were Unit members. (GC Exh.
6.) On that same date, PFAC responded contesting the College’s assertion that the FTST
on the list are within the Unit for ambiguous reasons. 25
By April 28, 2015, when the College learned of the Region’s dismissal of the USCC
Petition, the College had already made the summer sessions and most of the fall 2015
teaching assignments. (Tr. 77.) The College attempted to verify the seniority status of the
FTST employees in order to afford the FTST teaching assignments based upon their
appropriate tier by seniority, but this was not fully accomplished for the 2015 teaching 30
assignments. Despite PFAC’s refusal to recognize its obligation to represent the FTST,
the College started granting them course assignments as Unit members with their
appropriate accrued teaching credits/seniority for the spring 2017 semester. (Tr. 91.)
On May 21, 2015, PFAC filed a class action grievance again alleging that the College
violated the CBA by improperly assigning courses, in part, as evidenced by “individuals who are 35
Full-Time Staff but are not listed on Appendix V as those with teaching as a part of their job
description yet are assigned PFAC bargaining unit work.” (Tr. 104–105; GC Exh. 26.)
June 5, 2015, PFAC filed a class action grievance again alleging that the College improperly
assigned courses in part because “Full-Time Staff not listed in Appendix V continue to receive
teaching assignments.”40
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June 9 and 11, 2015, Lauren Targ emailed PFAC letters from herself and approximately 52
other FTST individuals requesting to become members of PFAC. (Tr. 262–264; CP Exh. 5.)
Targ received no reply.
On July 15, 2015, PFAC sent the College a letter which contends that FTST are not in
the Unit and should therefore be excluded from being offered Unit work. (GC Exh. 8.) 5
In July and August of 2015, Lauren Targ and Vaupel sent various emails to PFAC
and the College demanding to be recognized as included in the Unit pursuant to the
Region’s findings in the dismissal of the USCC petition. While the College indicated its
intent to comply with the Region’s finding that FTST are included in the Unit, the Union
responded that it was interacting with the College to resolve this issue without clarifying 10
PFAC’s position as to whether it recognized FTST as included in the Unit. (Tr. 264–275;
CP Exhs. 6, 7, 8, 9, 10, and 11.)
On October 16, 2015, Vaupel and the other Charging Parties filed a grievance with the
College alleging, inter alia, that FTST were not properly assigned courses to teach pursuant to
the CBA because they were not recognized as Unit members. Vaupel also emailed the grievance 15
to PFAC president Diana Vallera, along with a letter requesting PFAC’s assistance, support, and
representation in processing the grievance. (Tr. 204–205; GC Exhs. 9 and 32.)
Later that same day, PFAC’s attorney Michael Persoon responded to Vaupel stating that “this
issue is part of an ongoing labor-management dispute, including the status of any full-time staff
in the part-time faculty unit.” On October 19, 2015, Vaupel responded asking for PFAC to 20
represent the FTST in their grievance regardless of any dispute PFAC had with the College. On
October 20, 2015, Persoon responded, “[PFAC does] not read the NLRB order [referring to the
Region’s April 28, 2015 dismissal of the USCC petition] to say that any full time staff person
who has ever taught a course is in the bargaining unit. . . .[PFAC] does not recognize you as a
member of the bargaining unit or a member of [PFAC].” (Tr. 205–207; GC Exh. 33.) Persoon 25
also sent an email to Terrence Smith explaining PFAC’s reasons for its position “that none of the
[FTST] are either in the P-fac bargaining unit or members of P-fac,” including that “[n]one of
these persons has ever appeared on a unit eligibility list or paid dues/fair share fees.10 (GC Exh.
10.)
On October 26, 2015, Vaupel emailed Persoon a letter detailing portions of the Regional 30
Director’s decision supporting his contention that the decision found the FTST to be in the Unit
and again requested a response as to whether PFAC would represent the FTST in pursuing their
grievance. (Tr. 207–208; GC Exh. 34.)
During the fall of 2015, the Charging Parties processed their October 16, 2015 grievance
through the steps of the CBA grievance process with the College denying the grievance on the 35
basis that PFAC did not recognize the FTST as being included in the Unit. They did not attempt
to arbitrate the grievance without PFAC’s representation. (Tr. 208–210; GC Exhs. 11, 35, and
36.)

10 The CBA contains a union security clause entitled Article III, Association Rights. (GC Exh. 3, pg. 3.)
JD–34–18
8
On December 9, 2015, the Charging parties filed Case 13–CA–165872 and Case 13–CB–
165873 alleging that the College and PFAC had engaged in unfair labor practices by
discriminating against the FTST in violation of the Act.
On December 21, 2015, PFAC filed a class action grievance alleging that the College again
improperly assigned courses. Although the grievance does not explicitly state that FTST were 5
improperly awarded Unit work it states that the assignments were not consistent with the
Recognition clause of the CBA which contains the Unit description. (Tr. 107–108; GC Exh 3,
pg. 1; GC Exh. 28.)
On April 22, 2016, the Region revoked the dismissal of USCC’s petition to represent the
FTST in their capacity as part-time faculty based upon representations by PFAC during the 10
investigations of the unfair labor practices filed by the Charging Parties that the FTST were
excluded from the Unit. (GC Exh. 12.)
The Region conducted a full representational hearing on USCC’s petition. On August 30,
2016, the Regional Director issued his decision finding that the FTST are represented by PFAC
in their capacity as part-time faculty, and therefore, the CBA constituted a representational bar to 15
USCC’s petition. The decision notes that the FTST’s full-time employment as staff for the
College is not significantly different than other Unit members, who also moonlight as part-time
faculty for the College while working full-time work for another employer. The decision went
on to state that “any ambiguity caused by the Employer and Intervenor PFAC’s interpretation of
the collective-bargaining agreement does not alter the clear fact that as part-time faculty these 20
individuals are appropriately included within the plain language of the Unit description and are
members of the PFAC bargaining unit. Moreover, any agreement between the Employer and
PFAC to exclude the petitioned-for group of employees, in their capacity as part-time faculty,
would be contrary to Board policy. See e.g., Cabrill Lanes, 202 NLRB 921, 923 fn. 12 (1973)
(Board refused to accept agreement by the employer and union to exclude three out of five 25
employees from the bargaining unit, where all were regular part-time employees.)” (GC Exh. 13,
p. 14.) PFAC filed a timely request for review of the Regional Director’s Decision with the
Board.
October 17, 2016, PFAC filed a grievance with the College alleging, in pertinent part, that
the College had improperly assigned FTST teaching credits/seniority. To support its claim that 30
FTST had no seniority status, the grievance states:
None of the so-called “FTST” or other persons similarly identified by the
College as having P-fac unit seniority for the first time following the Regional
Director’s order in 13-RC-146452 have paid the necessary union dues or agency 35
fees to accrue or maintain seniority in the P-fac unit. (GC Exh. 14.)
This grievance was submitted to arbitration by the parties on a stipulated record.
October 21, 2016, PFAC filed a class action grievance alleging that the College failed to 40
assign courses in accordance with the CBA, Articles I Recognition and VII Appointment/
Reappointment, among other provisions. (Tr. 108–110; GC Exh. 29B, GC Exh. 3.) An almost
identical grievance was filed on February 21, 2017, alleging that the College’s failure to assign
courses pursuant to the CBA continued in the spring of 2017. (Tr. 111–112; GC Exh. 30.)
45
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November 22, 2016, Vaupel emailed PFAC letters from himself and approximately 28 other
FTST individuals requesting to become members of PFAC. (GC Exh. 4.) Vaupel received no
response.
On January 11, 2017, Arbitrator Robert Perkovich issued his (Arbitrator’s award) in regards
to the October 17, 2016 grievance. Contrary to the Regional Director’s decision, the arbitrator 5
found that FTST were excluded from the Unit, and therefore, should not have been assigned
courses by the College. (GC Exh. 15.) PFAC submitted a copy of the Arbitrator’s award to the
Board in support of its request for review of the arbitrator’s decision.
On January 23, 2017, PFAC filed Case 17-CV-513 in the United States District Court for the 10
Northern District of Illinois Eastern Division seeking to enforce the Arbitrator’s award.
On February 3, 2017, Persoon sent an email to Smith on PFAC’s behalf commenting that
PFAC trusted that the College would “not entertain further grievances from FTST under the P-
fac contract.” (GC Exh. 16.) 15
On February 14, 2017, the Board issued its order denying PFAC’s request for review of the
Regional Director’s decision stating: “We affirm the Regional Director’s action in dismissing
the petition as no party has argued that the petition should not have been dismissed. See
Williams-Sonoma Direct, Inc., 365 NLRB No. 13 (2017).” (GC Exh. 19.)20
In a chain of email exchanges between Persoon and Vaupel from February 13 to 16, 2017,
Persoon expressed PFAC’s position that Vaupel and other FTST had no standing to pursue a
grievance under the CBA based upon the Arbitrator’s award interpreting the contract to exclude
the FTST from the Unit.25
General Counsel intervened in District Court Case 17-CV-513 for the sole purpose of
requesting a stay in the proceedings. On March 15, 2017, while arguing to the District Court in
support of a stay in PFAC’s suit to enforce the Arbitrator’s award an attorney for General
Counsel stated that “the scope of the unit issue has been determined by the regional director, but 30
it has not been fully determined by the Board.” (GC Exh. 1(u), pg. 1.) As discussed below,
PFAC relies upon this statement to support its claim that it had a “good faith” belief that the
FTST were excluded from the Unit.
On June 2, 2017, PFAC filed Case 17-CV-4203 in the United States District Court for the 35
Northern District of Illinois Eastern Division seeking to force the College to arbitrate grievances,
which in part grieved the College’s assignment of courses to FTST in accordance with the
Arbitrator’s award. (GC Exh. 21.) PFAC maintained Case 17-CV-4203 through the date of the
hearing, but had engaged in settlement talks in an attempt to resolve that case. (GC Exhs. 21 and
22.) PFAC’s brief notes that this case was settled after the hearing. 40
On June 5, 2017, Vaupel, on the behalf of the FTST, sent a letter to PFAC President Vallera
and the College’s special counsel on labor relations, Smith, asking that FTST interests be
protected from discrimination in the upcoming negotiations for a successor agreement to the
CBA in accordance with the Regional Director’s decision finding FTST in their capacity as part-45
time faculty are included in the Unit. On June 6, 2017, Persoon responded to Vaupel and carbon
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copied Smith stating that PFAC, relying upon the Arbitrator’s award, did not recognize the FTST
as being in the Unit and noted that General Counsel had intervened in the District Court
proceedings but had not argued to the court that the Arbitrator’s award was not enforceable.
Therefore, PFAC would not be representing FTST’s concerns in successor contract negotiations.
Vaupel responded informing Persoon of the FTST’s opinion that PFAC’s reliance on the 5
Arbitrator’s award was wrong. (GC Exhs. 38, 39, and 40.)
On July 7, 2017, Clint Vaupel on behalf of the FTST filed Case 13–CB–202023 alleging that
PFAC violated Sections 8(b)(1)(A), (2), and (3) by obtaining the Arbitrator’s award, seeking to
enforce that award in Case 17-CV-513, and by continuing to insist that the FTST were not in the 10
Unit. (GC Exh. 1(m).)
On July 10, 2017, the College filed Case 13–CB–202035 alleging that PFAC violated
Sections 8(b)(1)(A), (2), and (3) by pursuing grievances and attempting to cause the College to
discriminate against the FTST in violation of Section 8(a)(3) by seeking to deny the FTST rights 15
under the CBA, by filing Case 17-CV-4203, by seeking to compel the arbitration of grievances
that would deny FTST their rights as Unit members under the CBA, and notifying the College
that it does not recognize FTST as part of the Unit and refusing to provide information
concerning the FTST in preparation for negotiations for a subsequent collective-bargaining
agreement. (GC Exh. 1(o).)20
On July 13, 2017, PFAC filed a class action grievance alleging that the College failed to
assign courses in accordance with the CBA including by “[FTST] receiving assignments before
A tier instructors received 1st and 2nd classes.” Because at least some of the FTST, such as
Vaupel, have enough teaching credits to be in tier A, the language of the grievance suggests that 25
PFAC’s position was that FTST could not be in tier A because they are excluded from the Unit,
which was Smith’s understanding from negotiating on the behalf of the College with PFAC over
these grievances. (GC Exh. 31.)
On November 9, 2017, the U.S. District Court issued its decision in Case 17-CV-513 denying
PFAC’s petition to confirm the Arbitrator’s award and granting the College’s motion to vacate 30
the award. On November 14, 2017, the District Court issued a judgment in favor of the College
for the cost of litigation in the case. (GC Exhs. 18, 20, and 41.)
PROCEDURAL ISSUE
At hearing PFAC questioned whether it was allowed to present evidence to relitigate the 35
representational issue that was addressed by the Regional Director’s decision in this unfair labor
practice proceeding. I re-affirmed my decision in my pre-hearing order in response to the
Charging Parties’ motion in limine to preclude the relitigation of the unit issue for the reasons
cited in my order. For the convenience of the reader, I readdress them here.
40
As the Board held in Wolf Creek Nuclear Operating Corp., 365 NLRB No. 55 (2017), a
“Regional Director's decision is final—and thus may have a preclusive effect—if no request for
review is made [as was the case in Wolf Creek] or if the Board denies a request for review. It
does not matter that the Board itself did not address the issue.” In Wolf Creek, the Board cites
Section 102.67(g) [formerly Section 102.67(f)] which states that “Denial of a request for review 45
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[of a regional director’s decision] shall constitute an affirmance of the regional director's action
which shall also preclude relitigating any such issues in any related subsequent unfair labor
practice proceeding.” Id. See, Section 102.67(g) of the Board's Rules and Regulations, Series 8,
as amended; Williams-Sonoma Direct, supra at slip op. 1; Local 340, New York New Jersey
Regional Joint Board (Brooks Brothers, A Division of Retail Brand Alliance, Inc., 365 NLRB 5
No. 61, slip op. 1 (Apr. 13, 2017).
The one exception to this rule is when the party
seeking relitigation of the previously decided issue satisfies its burden of 10
presenting new factual circumstances that would vitiate the preclusive effect of
the earlier ruling.” Id.; Carry Cos. of Illinois, 310 NLRB 860, 860 (1993)
(“changed circumstances” exception to preclusion not established because “the
Petitioner has failed to produce” evidence of such); Harvey's Resort Hotel, 271
NLRB 306, 306-307 (1984) (applying preclusion in context of unfair labor 15
practice proceedings and holding that when it is clear that an issue was “fully
litigated,” i.e., “put in issue and resolved in the earlier proceeding,” preclusion
applies unless evidence of changed circumstances is produced). Id.
At no time has PFAC raised evidence of a change in the factual circumstances or 20
newly acquired formerly unavailable evidence of a change in the Unit employees’
employment conditions that would vitiate the preclusive effect of the Regional Director’s
decision. Instead, PFAC points to its contention that the Regional Director’s decision
was in error and/or did not constitute full litigation of the representational issue. Such
contentions do not evidence changed circumstances that would affect the unit 25
determination; therefore, I find that PFAC has failed to assert that there are factual
circumstances that warrant the relitigation of the unit issue.11
Accordingly, I affirm my order precluding evidence offered for the purpose of
relitigating the representational issue. 30
ANALYSIS
PFAC contends that for various reasons it was privileged to maintain its position that

11 In asserting that the representational issue should be litigated in these proceedings, PFAC also relies upon a
statement made by a Board attorney representing General Counsel in the District Court proceeding in Case 17-CV-
513. The attorney stated that the representation issue “has not been fully determined by the Board.” This statement
which contradicts the Board’s Rules and Regulations and Board precedent, does not negate the preclusive effect of
the Board’s denial of PFAC’s request for review. See George Joseph Orchard Siding, Inc., 325 NLRB 252, 255
(1998) (“the General Counsel's memoranda, or indeed other communications or positions of the General Counsel,
like the positions of the counsel for the General Counsel made at trial, are but the position of a party to the complaint
litigation. As such the General Counsel's positions-as opposed to joint General Counsel-Board determinations or
provisions-are not binding on the Board or its judges and are effective only to the extent they are persuasive”);
George Banta Company, 256 NLRB 1197, 1221 (1981) (Counsel for General Counsel's assertion of a legal principle
is not binding upon the Board). Thus, I find that the statement made by the attorney for General Counsel has no
legal effect on the finality of the Regional Director’s decision that the FTST are included in the PFAC bargaining
unit.
JD–34–18
12
the FTST are excluded from the Unit, and therefore, was privileged to inform them and
the College of its position, to refuse to represent the FTST in grievance processing, and to
file, maintain and seek to enforce grievances and the Arbitrator’s award in furtherance of
this position. As discussed below, PFAC’s contention that the FTST are excluded from
the Unit is contrary to its own assertions and the Board’s determination resolving the 5
representational issue. Because of the Board’s primacy in resolving representational
issues, I find, as discussed more fully below, that PFAC’s refusal to recognize the FTST
as included in the Unit and the actions that it took in furtherance of this position as
alleged in the consolidated complaint violate Sections 8(b)(1)(A), (2), and (3).
10
1. Are the FTST included in the Unit?
PFAC contends that the Region’s administrative dismissal of the USCC petition did not
determine that the FTST were in the Unit and that the Regional Director’s decision was in error
and points to the Arbitrator’s contrary interpretation and findings to substantiate these claims. 15
PFAC further contends that only an arbitrator can decide the representational issue in this case
because it involves contract interpretation.
Contrary to PFAC’s contention, the Board’s primary jurisdiction over representation issues
pursuant to Section 9 of the Act is well established in the law. Board decisions on 20
representational issues supersede arbitrator’s decisions on the same issues. The Supreme Court
affirmed this primacy in Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 272 (1964), by
holding that bargaining unit disputes may be submitted to an arbitrator, but “[s]hould the Board
disagree with the arbiter, by ruling, for example, that the employees involved in the controversy
are members of one bargaining unit or another, the Board's ruling would, of course, take 25
precedence. . . . The superior authority of the Board may be invoked at any time.” See also,
Local 340, New York New Jersey Regional Joint Board (Brooks Brothers, A Division of Retail
Brand Alliance, Inc., 365 NLRB No. 61 (Apr. 13, 2017) (relying upon Carey in holding that the
arbitrator's decision is not controlling because it was superseded by the superior authority of the
Board's subsequent unit clarification decision and order and that attempting to enforce the 30
arbitrator’s award constituted a separate violation of the Act); Chauffeurs, Teamsters and
Helpers Local 776 (Rite Aid, Corp.), 305 NLRB 832, 834 (1991); Yellow Freight Systems, Inc. v.
Auto. Mechanics Local 701 Int’l Ass’n of Machinists, AFL-CIO, 684 F.2d 526, 529 (7th Cir.
1982) (refusing to enforce an arbitrator’s award that was in conflict with an earlier NLRB
decision on a representation issue due to the Board’s primacy in such issues).35
In asserting that only an arbitrator can decide the representational issue in this case because it
requires, in part, contract interpretation and analysis of past practice, PFAC fails to fully
appreciate the Board’s primacy in deciding representational issues. An arbitrator’s award in any
case is necessarily based upon contract interpretation and/or analysis of the practice of the 40
parties. The Supreme Court in Carey found that a Board decision on the same representational
issue has precedence over an arbitrator’s determination on that issue. In General Truck Drivers
Local 952, 305 NLRB 268 (1991), the Board held that the union violated Section 8(b)(1)(A), (2),
and (3) of the Act by filing, maintaining, processing, and insisting on arbitration of grievances
seeking to undermine two prior board representational unit determinations in decertification 45
petitions. The Board also held that to the extent that the grievances sought to undermine those
JD–34–18
13
determinations “they intrude[d] on matters within the exclusive jurisdiction of the Board.” One
of the units was determined by a stipulated election agreement and the other was determined by a
regional director’s decision pursuant to a representational hearing. Similar to the instant case,
collective-bargaining agreements and past practice existed between the representative and the
employer. Thus, I find no merit to PFAC’s contention that the Regional Director’s decision does 5
not have primacy over the Arbitrator’s award because contract language and past practice was
considered in the representational proceeding. 12
Based thereon, I reject PFAC’s argument, as did the District Court in 17-CV-513, that only
an arbitrator could resolve the unit issue in this case because it involved in part contract 10
interpretation and consideration of the parties’ past practice. (GC Exh. 20, pg. 10–11.) I find
that the Regional Director’s decision that the FTST are included in the Unit is the binding legal
authority on the representational issue, and my findings with regard to the unfair labor practices
must be consistent with that decision.
15
2. Did PFAC owe the FTST a duty of fair representation?
A union owes each of the employees in the unit it represents a duty of fair representation.
“By [a union’s] selection as bargaining representative, it has become the agent of all the
employees, charged with the responsibility of representing their interests fairly and impartially.” 20
Wallace Corporation v. NLRB, 323 U.S. 248, 255 (1944). “When the … union accepted
certification [under the Act] as the bargaining representative for the group it accepted a trust. It
became bound to represent equally and in good faith the interests of the whole group.” Hughes
Tool Company v. NLRB, 147 F.2d 69, 74 (C.A. 5, 1945). Thus, PFAC owed the FTST fair
representation.25
To determine whether a union has met its representational duties, the Board still applies its
rationale in Miranda Fuel Co., 140 NLRB 181, 184 (1962), holding that:
Section 7 thus gives employees the right to be free from unfair or irrelevant or 30
invidious treatment by their exclusive bargaining agent in matters affecting their

12 PFAC also seems to contend that in order for the Board’s representational proceedings to have a preclusive effect,
the underlying representational hearing must have been a unit clarification proceeding. PFAC contends that the
Regional Director’s decision is invalid because even if the petition in this case had been a unit clarification petition,
it would have been improper. To support this contention, PFAC asserts the following quote from Carey:
As noted, the Board clarifies certificates where a certified union seeks to represent additional
employees; but it will not entertain a motion to clarify a certificate where the union merely seeks
additional work for employees already within its unit.
Supra at 268–269. This assertion is simply not applicable to the instant case. Here PFAC was not seeking
to expand its unit to include the FTST, which would warrant a unit clarification petition, or to expand the
type of work the Unit performed. A unit clarification petition was not appropriate under the circumstances,
and that fact does not negate the unresolved representational issue that the Regional Director’s decision
resolved—were the FTST already covered by an existing bargaining unit for which there was a contract bar
preventing a test of that representation. Thus, I find no merit to PFAC’s contention that it was improper for
the Regional Director to decide the representational issue because it did not arise in the context of a unit
clarification petition.
JD–34–18
14
employment. This right of employees is a statutory limitation on statutory
bargaining representatives, and we conclude that Section 8(b)(1)(A) of the Act
accordingly prohibits labor organizations, when acting in a statutory
representative capacity, from taking action against any employee upon
considerations or classifications which are irrelevant, invidious or unfair.5
See, National Association of Letter Carriers Branch 124, 362 NLRB No. 103 (2015).
The Supreme Court in Vaca v. Sipes, 386 U.S. 171, 176 (1967), similarly recognized that
a union owes its members a duty of fair representation and must exercise its discretion
with complete good faith and honesty, and to avoid arbitrary conduct. The Supreme 10
Court held that a union cannot take actions that negatively affect employees’ employment
based upon arbitrary, discriminatory, and/or bad faith reasons. Id. See also, United
Steelworkers v. Rawson, 495 U.S. 362, 373 (1990) (“The Union's duty of fair
representation arises from the National Labor Relations Act itself.”). The Board and the
Supreme Court have made clear that “A union's actions are considered arbitrary if the 15
union has acted ‘so far outside ‘a wide range of reasonableness' as to be irrational.”
Amalgamated Transit Union Local No. 1498 (Jefferson Partners L.P.), 360 NLRB 777
(2014) (quoting Air Line Pilots Assn. v. O'Neill, 499 U.S. 65, 67 (1991), and Ford Motor
Co. v Huffman, 345 U.S. 330, 338 (1953)).
20
Thus, a union’s actions are arbitrary if they are unrelated to its legitimate interest in
performing its collective-bargaining function and in representing its entire constituency.
While it is impossible to fully characterize the full realm of arbitrary and non-
arbitrary actions that a union may take, it is instructive to consider non-arbitrary, fair, 25
reasonable, and objective motives for unions’ actions. For example, decisions affecting
employees’ employment based upon such criteria as employer preference, skill,
availability, length of unemployment, and recall rights, all are standards easily
ascertainable, reasonable, objective, and related to legitimate union interests, and
therefore, are not arbitrary.30
PFAC makes no claim that it relied upon such acceptable, non-arbitrary criteria in
deciding to exclude the FTST.13 Instead, PFAC contends that it relied upon a “good
faith” belief that it did not represent the FTST which privileged it to take other actions in
furtherance of that belief. PFAC’s strongest evidence in support of this contention is the 35
letter sent by the College on May 22, 2014, stating its position, at that time, that FTST
were not a part of the Unit, and the January 11, 2017, Arbitrator’s award finding the
FTST excluded from the Unit.
PFAC relies upon this evidence to assert that during different portions of the relevant 40

13 PFAC made some vague references to non-arbitrary reasons for excluding some FTST from the PFAC Unit, such
as the possibility that some FTST may have supervisory status, but presented no evidence to support such assertions.
I note that the time to raise these issues was during the representational case, that the two FTST employees who
testified did not testify to any duties or authorities that would indicate that they are supervisors within the meaning
of Section 2(11) of the Act, and that PFAC failed to meet its burden of affirmatively establishing supervisory
authority for any of the FTST. See NLRB v. Kentucky River Community Care, Inc., 532 US 706, 711–712 (2001);
Dean & Deluca, 338 NLRB 1046, 1047 (2003).
JD–34–18
15
period it retained a “good faith” basis for its belief that it did not represent the FTST.
Because the complaint alleges that PFAC’s unlawful conduct started on May 11, 2015, I
find that there are three distinct periods with regards to the unit issue: the period between
deadline for requesting review of the Region’s administrative dismissal of the USCC
petition on April 28, 2015, and its subsequent revocation on April 22, 2016; the period 5
between the revocation on April 22, 2016, and the Board’s denial of request for review of
the Regional Director’s decision on February 14, 2017; and the period since the February
14, 2017.
I find that after the Board issued its February 14, 2017 denial of request for review, 10
PFAC has no viable argument that it had a good faith belief that it did not represent the
FTST considering the legal precedent discussed above. The evidence supports a finding
that PFAC was aware of the primacy of the Board’s processing of representational issues.
As the District Court found in Case 17-CV-513, PFAC did not ask the Arbitrator to
resolve the unit issue, which had already been decided in the Regional Director’s 15
decision, but sought clarification as to how to treat the FTST under the CBA in light of
that decision. Despite this apparent recognition, PFAC failed to afford the FTST any
benefits of representation and sought to prevent them from acquiring any benefits of the
CBA. When the Arbitrator came to a conclusion that the FTST were excluded from the
Unit in contravention of the Regional Director’s decision, PFAC re-entrenched in its 20
position that it did not represent the FTST. PFAC insisted on that position even after the
Board, which had been informed of the Arbitrator’s award, denied PFAC’s request for
review making the Regional Director’s decision final.
With regard to the period between the administrative dismissal of the USCC petition and the 25
revocation of that dismissal, I find that the administrative dismissal had the same legal effect as a
regional director’s decision on a representational issue for which no timely request for review
was filed. The Board’s Rules and Regulations Section 102.67 applies to actions taken by
Regional Director’s in representational proceedings, including the administrative dismissal of a
petition. Section 102.67(a) states that “the Regional Director may proceed, either forthwith upon 30
the record or after oral argument, the submission of briefs, or further hearing, as the director may
deem proper, to determine whether a question of representation exists in a unit appropriate for
purposes of collective bargaining, and to direct an election, dismiss the petition, or make other
disposition of the matter. . . .
(c) Requests for Board review of Regional Director actions. Upon the filing 35
of a request therefor with the Board by any interested person, the Board may
review any action (emphasis added) of a Regional Director delegated to him
under Section 3(b) of the Act except as the Board’s Rules provide otherwise, but
such a review shall not, unless specifically ordered by the Board, operate as a stay
of any action by the Regional Director. The request for review may be filed at any 40
time following the action until 14 days after a final disposition of the proceeding
by the Regional Director. . . .
(g) Finality; waiver; denial of request. The Regional Director’s actions (emphasis
added) are final unless a request for review is granted. The parties may, at any
time, waive their right to request review. Failure to request review shall preclude 45
such parties from relitigating, in any related subsequent unfair labor practice
JD–34–18
16
proceeding, any issue which was, or could have been, raised in the representation
proceeding. Denial of a request for review shall constitute an affirmance of the
Regional Director’s action which shall also preclude relitigating any such issues
in any related subsequent unfair labor practice proceeding.
5
These provisions of the Board’s Rules and Regulations refer to actions taken by regional
directors in representational proceedings not just regional director’s decisions issued pursuant to
a hearing. The Board frequently defers to administrative dismissals in representational
proceedings with the result of making the regional director’s action of administratively
dismissing the petition the resolution of the representation issue. See 1650 Broadway 10
Associates, Inc., 2017 WL 2472848 (June 7, 2017); Top Grade Excavating, Inc., 2015 WL
682272 (Feb. 18, 2015); Rapera, Inc., 333 NLRB 1287 (2001) (upholding the regional director’s
administrative dismissal as the decision on the representational issue because the Board split 2 to
2 could not agree to affirm or overturn the regional director’s action on the representational
issue). Therefore, I find that the Regional Director’s administrative dismissal of the USCC 15
petition which was not timely appealed decided the representational issue and absent changed
circumstances had a preclusive effect on raising the issue without asserting changes in
circumstances.
I note that it was PFAC’s equivocal statements concerning whether it represented the FTST 20
that caused the Regional Director to revoke the administrative dismissal. The Region had relied
upon PFAC’s own insistence that it was the sole representative of all part-time faculty employed
by the College in administratively dismissing the petition.14 After successfully asserting that it
represented all of the part-time faculty at the College, which includes the FTST, precluding this
group of employees from representation by any other union such as the USCC, it refused to 25
afford them any benefits of that representation. Based upon its own assertions that it is the
exclusive bargaining-representative of the part-time faculty and the various Board actions/
decisions affirming this position, I find that PFAC had no valid “good faith” belief that it did not
represent the FTST, even during the period when no Board action was in effect precluding this
position. 30
Having found that PFAC did not have a “good faith belief that it did not represent the FTST,
I further find that PFAC has not asserted a non-arbitrary reason for the total exclusion of the
FTST from representation. PFAC’s “have its cake and eat it too” stance in this regard totally
divests the FTST of their Section 7 rights to a collective-bargaining representative and excludes
them from employment in the capacity of part-time faculty for arbitrary and irrelevant reasons. I 35
find that the evidence establishes that for arbitrary and discriminatory reasons PFAC was seeking
to exclude the FTST from the Unit in order to prevent them from enjoying the negotiated
benefits contained in the CBA, including being assigned Unit work.
Thus, I find that PFAC violated Section 8(b)(1)(A) of the Act by its failure to
recognize the FTST as Unit members. I also find that in furtherance of this position 40
PFAC breached its duty of fair representation and violated Section 8(b)(1)(A) of the Act
by:

14 This assumes the part-time faculty had taught the contractual minimal credit hours to be included in the PFAC
Unit.
JD–34–18
17
1) requesting that the College not treat the FTST as Unit employees or afford
them the work assignment preferences given to Unit employees under the
CBA;
2) refusing to process grievances pursuant to the CBA on the behalf of
the FTST concerning the assignment of Unit work;5
3) maintaining grievances which attempted to compel the College to exclude
FTST
from work assignments under the CBA, along with its filing of a lawsuit
seeking to enforce those grievances;
4) filing and maintaining a lawsuit seeking to enforce the Arbitrator’s award 10
finding the FTST to be excluded from the Unit; and
5) informing FTST and the College in writing that the FTST were excluded
from the Unit and all matters related to bargaining a successor collective-
bargaining agreement for the Unit.
15
3. Did PFAC violate Section 8(b)(1)(A) and (2) of the Act?
Section 8(b)(2) of the Act states: “It shall be an unfair labor practice for a labor organization
or its agents to cause or attempt to cause an employer to discriminate against an employee in
violation of subsection 8(a)(3) or to discriminate against an employee with respect to whom 20
membership in such organization has been denied or terminated on some ground other than his
failure to tender the periodic dues and the initiation fees uniformly required as a condition of
acquiring or retaining membership.” “An 8(b)(2) violation can be established by direct evidence
that the union sought to have the employer discriminate, or by sufficient circumstantial evidence
to support a reasonable inference that the union requested that the employer discriminate.” 25
International Operating Engineers, Local 12 (Kiewet Industrial), 337 NLRB 544, 545 (2002).
Except in circumstances where there is a valid union-security clause and the employee has not
been denied union membership because of his failure to pay the uniformly required union dues
and fees (or their equivalent), a union violates this section of the Act if it makes an efficacious
demand that an employer discharge, or otherwise discriminate against an employee because of 30
his or her nonmembership. Letter Carriers Branch 86 (Postal Service), 315 NLRB 1176, 1177–
1178 (1994) (citing, Mid-States Metal Products, 156 NLRB 872, 900 (1966); Mid-Pacific
Construction Company, 161 NLRB 1351, 1355 (1966)).
The Board has long held that an 8(b)(2) allegation can be establish under a Wright Line, 251 35
NLRB 1083(1980) analysis or, as here, a duty-of-fair-representation analysis. See SSA Pacific
Inc., 366 NLRB No. 51, slip op. 1 (2018). The duty-of-fair-representation framework establishes
“not only that a union may not take action impairing a represented employee's job tenure or
prospects based on arbitrary, unfair, irrelevant, or invidious considerations, but also that the
union bears the practical affirmative burden of justifying virtually any such ‘impairment’ action 40
by showing that its action was taken to fulfill its overriding duty to represent the legitimate
interests of its constituency.” Operative Plasterers & Cement Masons, Local 299 (Wyoming
Contractors Assn.), 257 NLRB 1386, 1395 (1981). This presumption may be overcome by
evidence that the labor organization was acting “in good faith, based on rational considerations,
and were linked in some way to its need effectively to represent its constituency as a whole.” Id. 45
See also, Acklin Stamping, 351 NLRB 1263, 1263 (2007).
JD–34–18
18
In the instant case, the consolidated complaint alleges that PFAC violated Section 8(b)(2) of
the Act by its May 11, 2015 email contesting the College’s seniority list which including FTST
as Unit members with accumulated seniority on the basis of PFAC’s position that FTST are
excluded from the Unit and by refusing to process grievances in which FTST asserted that they 5
had not been properly assigned courses in violation of the CBA, because of PFAC’s position that
FTST are excluded from the Unit.15 PFAC contends that it had a “good faith” belief that it did
not represent FTST when making these assertions to the College and eventually to the Charging
Parties. For the reasons discussed above, I reject PFAC’s defense that it was acting in “good
faith” in asserting to the College that it did not represent the FTST and in refusing to process 10
their grievances concern work assignments. These actions constituted Section 8(b)(1)(A)
violations of the PFAC’s duty of fair representation of the FTST. PFAC also contends that these
allegations must be dismissed because of a lack of evidence to support a prima facie case under
Wright Line. As discussed above, an 8(b)(2) allegation can be established through a duty of fair
representation framework, which I apply to this case because PFAC’s failure to recognize and 15
represent the FTST breached its duty of fair representation in violation of Section 8(b)(1)(A).
See L. D. Kichler Co., 335 NLRB 1427 (2001).
The CBA contains a union security clause. (GC Exh. 3, pg. 3.) In June 2015, a few months
after the Region administratively dismissed the USCC petition, numerous FTST submitted letters 20
to PFAC requesting information on how to become members of PFAC in accordance with the
union security clause, but their requests were ignored, as were their subsequent similar requests.
PFAC noted that the FTST had not “paid the necessary union dues or agency fees to accrue or
maintain seniority” in the Unit in support of its opposition to the grievances filed by FTST
contending they were wrongfully denied Unit work and in defense of its grievances filed against 25
the College alleging that FTST were improperly assigned Unit work. Yet, it was PFAC’s own
unlawful refusal to recognize the FTST as part of the Unit and its refusal to respond to their
requests to become PFAC members that prevented the FTST from complying with the union
security clause. Thus, I find no merit to any argument that the FTST were properly excluded for
failing to comply with the union security clause in the CBA.30
In light of the Regional Director’s decision and PFAC’s own assertion pre-dating that
decision that it represents all part-time faculty, who have taught the requisite credit hours at the
College, I find nothing in the record that meets PFAC’s affirmative burden to show that its
actions to preclude the FTST’s from securing teaching assignments from the College was taken
to fulfill its overriding duty to represent the legitimate interests of its whole constituency. 35

15 I note that the consolidated complaint paragraph VIII(b) alleges that only PFAC’s conduct discussed here and
listed in paragraphs VI(a)(ii) and (b) of the consolidated complaint violated Section 8(b)(2) of the Act. General
Counsel’s brief does not specifically analyze the 8(b)(2) allegation outside of its discussion of alleged violations of
Section 8(b)(3) of the Act. I further note that consolidated complaint paragraph VIII(c) alleging 8(b)(3) violations
relies upon different conduct, alleged in paragraphs VI(e) through (j) and VI(l), than that of the 8(b)(2) allegations.
Thus, it is unclear as to which analysis General Counsel is asserting establishes the Section 8(b)(2) allegation. Since
the complaint alleges and I have found that the conduct arising out of its refusal to recognize and represent the FTST
described in paragraphs VI(a)(ii) and (b) violated Section 8(b)(1)(A) of the Act, I analyze the 8(b)(2) allegation
under a duty-of-fair-representation framework. I further note that an argument could be made that the conduct
alleged to have violated Section 8(b)(3) in the consolidated complaint also violated Section 8(b)(2). I decline to
address the merits of such an argument here because it was not alleged in the consolidated complaint or by General
Counsel at the hearing or specifically in General Counsel’s brief.
JD–34–18
19
PFAC contends that it was only attempting to preserve work for Unit employees by
maintaining this position and demanding that the College not recognize the FTST, refrain from
assigning Unit work to the FTST, and from processing grievances concerning their work
assignments. In actuality, PFAC by this conduct was attempting to preserve the work for a
subset of the Unit while preventing another subset of the Unit from engaging in any part-time 5
teaching. To reach this goal, PFAC demanded that the College not recognize the FTST as
included in the Unit and refrain from assigning them Unit work. Thus, there is no rational
argument that it was effectively representing its whole constituency by totally excluding a
portion of the Unit, which is in direct contradiction of the Regional Director’s decision and its
own assertions that it is the exclusive bargaining representative for all part-time faculty at the 10
College.
Accordingly, I find that PFAC violated Section 8(b)(2) of the Act by breaching its duty-of-
fair representation of the FTST by refusing to represent them and by causing or attempting to
cause the College to discriminate against them in making work assignments.
15
4. Did PFAC violated Section 8(b)(1)(A) and (3) of the Act by seeking to enforce the
Arbitrator’s award and by maintaining and seeking to compel arbitration of certain
grievances?
General Counsel and Charging Parties allege that PFAC violated Section 8(b)(1)(A) and (3) 20
of the Act by filing and maintaining Case 17-CV-513 in United States District Court seeking to
enforce the Arbitrator’s award and by maintaining grievances and filing and maintaining Case
17-CV- 4203 in the United States District seeking to force arbitration those grievances which,
sought, at least in part, to preclude the College from recognizing the FTST as members of the
Unit and from applying the CBA to them. General Counsel cites the Board’s decision in 25
General Truck Drivers Local 952, 305 NLRB 268, 268 (1991), holding that a union violates
Section 8(b)(1)(A), (2), and (3) by filing grievances “seeking to undermine the Board's prior
decisions in the representation cases, had objectives that were illegal as a matter of Federal law.”
PFAC contends that it had a good faith belief that it did not represent the FTST which was 30
bolstered by the Arbitrator’s award, and therefore, was privileged to file and maintain these
lawsuits. PFAC cites Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983), in support
of its contention that its actions are constitutionally protected, absent a showing of “bad faith”
motive in filing and maintaining these District Court cases and underlying grievances. Contrary
to PFAC’s assertion, I find it is unnecessary to determine whether PFAC had a bad faith motive 35
in excluding the FTST in this context, because PFAC’s filing and maintenance of grievances and
lawsuits seeking to exclude the FTST from the Unit and the benefits of its collective-bargaining
agreement with the College were preempted by the Board’s denial of review of the Regional
Director’s decision.
40
The Board recently addressed the issue of preempted lawsuits in Ashford TRS Nickel, LLC a
subsidiary of Ashford Hospitality Trust, Inc., 366 NLRB No. 6, slip op. 4–5 (2018) stating:
The Supreme Court addressed the status of preempted lawsuits in connection
with Labor disputes in Bill Johnson's Restaurants v. NLRB, 461 U.S. 731 (1983). 45
There, the Court held that the Board could enjoin baseless litigation, but, in light
JD–34–18
20
of the First Amendment, could not enjoin a reasonably based ongoing lawsuit
even if the lawsuit interfered with employees' Section 7 rights. The Court,
however, was careful to delineate the limited scope of its holding, making clear
that preempted lawsuits were a different matter altogether….The continued
vitality of the Bill Johnson's exemption for preempted lawsuits was later 5
recognized by the Court of Appeals for the District of Columbia Circuit in Can-
Am Plumbing v. NLRB, 321 F.3d 145 (D.C. Cir. 2003). In that case, the court
considered whether a state court lawsuit challenging a job targeting program
under California's prevailing wage statute violated Section 8(a)(1). Like the
Respondent, the employer argued that the Supreme Court in BE & K had extended 10
the baseless-and-retaliatory standard to the analysis of preempted lawsuits. The
court rejected that argument. First, the court observed that the Board had
consistently declined to apply the Bill Johnson's analysis to lawsuits that were
preempted by the Act. Second, the court endorsed the Board's interpretation that
BE & K was “not relevant” because it did not affect the Bill Johnson's exemption 15
for preempted lawsuits. Id. at 151. See also Small v. Plasterers Local 200, 611
F.3d 483, 492 (9th Cir. 2010) (quoting Can-Am, “BE & K did not affect the
footnote 5 exemption in Bill Johnson's”)…. we reaffirm the Board's consistently
held view that a preempted lawsuit enjoys no special protection under the First
Amendment and may be found to violate the Act if it is unlawful under traditional 20
NLRA principles; that is, it may be found unlawful if it has a tendency to interfere
with the free exercise of a Section 7 right. [Footnote omitted.]
The Board has repeatedly held that Board determinations in representational proceedings
preempt lawsuits filed in other jurisdictions. See New York New Jersey Regional Joint Board 25
(Brooks Brothers), 365 NLRB No. 61 (2017); Allied Trades Council (Duane Reade, Inc.), 342
NLRB 1010, 1013 fn. 4 (2004); Rite Aid, 305 NLRB 832, 834 (1991). The Board in Rite Aid
held that maintaining a lawsuit aimed at achieving a result that is incompatible with a contrary
Board ruling fell within the “illegal objective” exception articulated in fn. 5 of Bill Johnson's
Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983), and therefore lacked constitutional protection. 30
305 NLRB 834-835. The Board held that the arbitrator's decision was superseded by the
superior authority of the Board's subsequent unit clarification decision. Citing Carey v.
Westinghouse Electric Corp., 375 U.S. 261, 272 (1964). The Board found that the union in Rite
Aid was “seeking to apply the collective-bargaining agreement to employees whom the Board
had determined to be outside of the bargaining unit, and by doing so, the union was insisting on a 35
change in the scope of the existing bargaining unit in violation of Section 8(b)(3) of the Act.”
305 NLRB 834–835. The union’s attempt to apply the union’s security clause to these
employees constituted a violation of Section 8(b)(2) of the Act.
Similarly, in Brooks Brothers, the Board concluded that the union violated Section 40
8(b)(1)(A), (2), and (3) of the Act by continuing its lawsuit and insisting that the employer
recognize and apply the parties’ collective-bargaining agreement’s union security clause to the
employees that the Board had found excluded from the union beyond the date that the Board
issued its denial of the request for review of the regional director’s decision in the
representational proceedings. 365 NLRB No. 61, slip op. 1. In Duane Reade, the Board found 45
that the violations of the Act started on the date of the regional director’s decision and direction
JD–34–18
21
of election in that case because no request for review was filed making the decision a final Board
ruling. 342 NLRB 1010, 1011–1013.
Accordingly, I find as alleged in the complaint that PFAC violated Section 8(b)(1)(A) and (3)
by filing and/or maintaining Case 17-CV-513 and in Case 17-CV- 4203, to the extent it asserted 5
that the College improperly assigned courses to FTST based upon PFAC’s assertion that they
were excluded from the Unit, after the Board denied its request for review of the Regional
Director’s decision on February 14, 2017.
5. Did PFAC violated Section 8(b)(1)(A) and (3) of the Act by refusing to bargain with 10
the College concerning the FTST interests in negotiations for a successor contract?
General Counsel also alleges that PFAC violated Section 8(b)(1)(A) and (3) by stating in
writing to Vaupel and Smith that FTST were not in the Unit and their interests were excluded
from all matters relating to bargaining a successor agreement to the CBA. As discussed above, 15
the FTST are in the Unit; therefore, their wages, hours and other terms and conditions of
employment are mandatory subjects of bargaining about which PFAC has a duty to bargain. See
Raytheon Network Centric Systems, 365 NLRB No. 161, slip op. at 5 (2017); NLRB v. Borg-
Warner Corp., 356 U.S. 342, 349 (1958) PFAC expressed its flat refusal to bargain with the
College concerning these mandatory subjects of bargaining. I find that PFAC violated Section 20
8(b)(1)(A) and (3) by refusing to negotiate on behalf of the FTST in their capacity as part-time
faculty in negotiations for a successor collective-bargaining agreement.
6. PFAC’s affirmative defense that the allegations are time barred by the
Section 10(b) of the Act. 25
PFAC contends that the “charges are time barred” under Section 10(b) of the Act. (RU Brief,
pg. 4.) The record is unclear as to which charge(s) PFAC is referring to by this language. It
appears that PFAC is referring to the initial charge Case 13–CB–165873 filed by the individual
Charging Parties, because the evidence discussed by PFAC to support this contention focuses 30
solely on when the individual Charging Parties first became aware that PFAC’s position was that
it did not represent the FTST.16 Thus, PFAC is apparently contending that the initial charge filed
by the Charging Parties on December 9, 2015, is time barred, because at least Vaupel and some
other FTST had heard rumors as early as November 2013 that PFAC did not recognize the FTST
as part of the Unit. In addition, Vaupel and some of the other Charging Parties had seen a letter 35
from the College stating its position, at that time, that the FTST were not in the Unit.

16 Because PFAC raised no argument and presented no evidence at hearing or in its brief as to the timeliness of the
charge filed by the College, I find that PFAC has failed its burden to prove any argument that the allegations
contained in charge 13–CB–202035 are time barred by Section 10(b) of the Act. I also note that the charges in
Cases 13–CB–202023 and 13–CB–202035 filed on July 7 and 10, 2017, respectively, where filed within 6 months
of PFAC’s filing of District Court Cases 17-CV-513 and 17-CV-4203 on January 23 and June 2, 2017, respectively.
Also, these charges were filed within a month of PFAC’s refusal to represent the FTST’s interests in negotiations for
a successor contract. Therefore, the facts do not support a finding that the filings of Cases 13–CB–202023 and 13–
CB–202035 alleging that the filing and maintenance of these lawsuits, the maintenance of underlying grievances,
and the refusal to bargain about the FTST’s interests in negotiations for a successor contract were outside the statute
of limitations.
JD–34–18
22
In support of this proposition, PFAC notes that in Ohio & Vicinity Regional Council of
Carpenters, 344 NLRB 366 (2005), the Board enforces a 6-month statute of limitations for the
filing of unfair labor practices. PFAC further contends that “where there is notice of a ‘clear and
unequivocal repudiation’ of an alleged statutory obligation, ‘the continuing violation theory no
longer applies and a party is required to file its unfair labor practice charge within six 5
months…[.]” NLRB v. Jerry Durham Drywall, 974 F.2d 1000 (8th Cir. 1992.) I note the
inaccuracy in PFAC’s assertion by this modified quote that the Durham Drywall decision stands
for the proposition that clear and unequivocal notice of the repudiation of any statutory right
precludes the litigation of all related matters arising more than 6 months after the original
repudiation. The Durham Drywall case held that a union cannot rely upon a continuing violation 10
theory to skirt the 10(b) statute of limitations for allegations alleging unilateral changes to the
contract, when it has been put on notice of an employer’s clear and unequivocal repudiation of
the contract outside of the 10(b) period. Id.
A more applicable discussion of the application of Section 10(b) is found in Bryan 15
Manufacturing Co., 362 U.S. 411, 416 (1960). In Bryan Manufacturing, the Supreme Court
distinguished between cases “where occurrences within the 6-month limitations period in and of
themselves may constitute as a substantive matter, unfair labor practices ... [and] ... earlier events
... [are] ... utilized to shed light on the true character of matters occurring within the limitations
period”; from cases in which “conduct occurring within the limitations period can be charged to 20
be an unfair labor practice only through reliance on an earlier unfair labor practice.” Section
10(b) of the Act only precludes the Board from finding a violation of the Act in the latter type of
case. Accordingly, the Supreme Court found that the NLRA's statute of limitations only
prevents the Board from holding a party liable for conduct “inescapably grounded on events”
that fell beyond the statute's horizon. Id. at 422. 25
In the instant case, I find that PFAC’s actions, within the 6-month period, constitute unfair
labor practices without any reliance upon actions it may have taken during the years preceding
the allegations at issue in this matter. The fact that PFAC may have breached its duty of fair
representation to the Charging Parties prior to May 11, 2015, without them filing charges over 30
that conduct, does not forever thereafter relinquish PFAC from its duties as the FTST’s
collective-bargaining representative. As the Regional Director’s decision found that duty has
been ongoing and the record contains no evidence of any legal cessation of that duty. Since the
representational duty is ongoing, each incident where PFAC breaches its duty-of-fair-
representation or maintains unlawful actions in light of that duty is a separate violation in and of 35
itself. See, International Brotherhood of Teamsters, Local 509 (Touchstone Television
Productions, LLC d/b/a ABC Studios), 357 NLRB 1668 (2011), enf’d Teamsters Local Union
No. 509 v. NLRB, 803 F.3d 1, 204 (2015) (finding that a union’s refusal to include an
individual’s name on the hiring hall list and/or refer him for work was a distinct unfair labor
practice regardless of conduct outside of the 10(b) period that may or may not have constituted a 40
similar violation). For example, Section 10(b) does not preclude pursuit of a complaint
allegation based on the maintenance and/or enforcement of an unlawful rule or policy within the
10(b) period, even if the rule or policy was promulgated earlier. Register Guard, 351 NLRB
1110 fn. 2 (2007); Lafayette Park Hotel, 326 NLRB 824, 825 (1998); Control Services, 305
NLRB 435, 435 fn. 2, 442 (1991), enfd. mem. 961 F.2d 1568 (3d Cir. 1992). See also, Arvin 45
Industries, 285 NLRB 753 (1987) (the Board concluded that where a superseniority provision on
JD–34–18
23
its face is either unlawful or presumptively unlawful, the violation (maintenance of the illegal
provision) is not “based upon” or “inescapably grounded on” events outside the 6-month 10(b)
period).
The only remaining statute of limitation question is whether the initial charge in this matter 5
was filled within 6-months of the charging parties having notice of the actions of PFAC alleged
to be violations in this matter. Established Board precedent holds that notice, whether actual or
constructive, must be clear and unequivocal, and that the burden of showing such notice is on the
party raising the affirmative defense of Sec. 10(b). See, Metropol Restaurant, 247 NLRB 132
(1980); Natico, Inc., 302 NLRB 668 (1991); Park Inn Home for Adults, 293 NLRB 1082 (1989). 10
I agree with General Counsel and the Charging Parties that PFAC has failed to meet its burden of
proving that the Charging Parties had clear and unequivocal notice that it refused to represent
them before Vaupel received Persoon’s email on October 20, 2015, informing Vaupel that it was
PFAC’s position that it did not represent him and presumably other FTST. The record contains
no documentary evidence or testimony of PFAC informing any of the Charging Parties of its 15
unequivocal position that it did not represent them before this date despite ongoing discussions
and concerns about this issue.
In its response to the Regional Director’s order to show cause why the USCC petition should
not be dismissed, PFAC asserted that it represents all part-time faculty, including FTST in their 20
capacity as part-time faculty, precluding them from being represented by another collective-
bargaining representative. It was PFAC’s and the College’s similar stance on this issue that
resulted in the Regional Director’s dismissal of the petition. Clearly, PFAC’s past assertions
concerning this issue have not been that it unequivocally did not represent the FTST. Yet, in its
May 11, 2015 communications with the College rejecting the College’s inclusion of the FTST in 25
the Unit seniority list, PFAC took the position that the FTST are excluded from the Unit. The
record contains no evidence that the Charging Parties were privy to this and other similar
communications between PFAC and the College, thus it did not constitute notice to the FTST
that PFAC refused to recognize them.
30
The first evidence that arguably supports that PFAC gave the Charging Parties clear and
unequivocal notice that PFAC refused to recognize them as part of the Unit was Persoon’s
October 20, 2015 email response to Vaupel denying his request for PFAC’s assistance in
processing a grievance on behalf of the FTST because PFAC did not represent Vaupel, and
presumably the other FTST. The Charging Parties filed Case 13–CB–165873 less than 2 months 35
after PFAC’s October 20, 2015 unequivocal notice that it refused to recognize or represent them
in processing their grievances.
Thus, I find that none of the charges filed in this matter against PFAC were barred by Section
10(b) of the Act’s 6-month statute of limitations. 40
7. PFAC’s contention that the case should be dismissed because it asserts that
there is no evidence of economic harm to the FTST
PFAC contends that the record contains no evidence that it caused the FTST to suffer any 45
economic harm, and therefore, the complaint should be dismissed for lack of sufficient evidence.
JD–34–18
24
This argument is flawed. Evidence of economic harm is not necessary to prove violations of
Sections 8(b)(1)(A), (2), or (3) of the Act. Even an unlawful discharge case, in which economic
losses are typical, there can be no economic harm if the discriminatee immediately starts work
with another employer for equivalent or higher wages. Regardless, the unlawful discharge is still
unlawful. The violation is established by the unlawful conduct on the respondent’s behalf 5
notwithstanding the economic effects of that conduct. Although the economic liability was
rightly not litigated in this unfair labor practice hearing, the evidence suggests that at least some
of the FTST experienced some economic harm during the Section 10(b) period and continuing
through December 2016. Being relegated to tier C clearly puts applicants at a disadvantage,
hence the whole purpose of the tier system and PFAC’s attempts to make it applicable to only a 10
subset of the Unit. The extent of this economic harm will be determined in subsequent
compliance stage proceedings. See Stark Electric, Inc., 324 NLRB 1207, 1212 fn. 3 (1997);
Dean General Contractors, 285 NLRB 573 (1987). Thus, I find no merit to PFAC’s argument
that this case should be dismissed due to lack of evidence of economic harm.
15
CONCLUSIONS OF LAW
1. Columbia College Chicago (the College) is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Part-time Faculty Association at Columbia College (PFAC) is a labor organization within 20
the meaning of Section 2(5) of the Act.
3. PFAC violated Section 8(b)(1)(A) of the Act by:
i) refusing to recognize certain employees, referred to as FTST employees,
as bargaining unit members and informing the College of its refusal to recognize 25
those members;
ii) requesting that the College not treat FTST employees as bargaining-unit
members or afford them the work assignment preferences given to bargaining-unit
employees under the collective-bargaining agreement;
iii) refusing to process grievances pursuant to the collective-bargaining 30
agreement on the behalf of FTST employees because of its refusal to recognize
them as members of the bargaining-unit;
iv) maintaining grievances which attempted to compel the College to exclude
FTST employees from the bargaining-unit precluding them from work
assignments under the collective-bargaining agreement, along with its filing of a 35
lawsuit seeking to enforce those grievances;
v) filing and maintaining a lawsuit seeking to enforce the Arbitrator’s award
finding FTST employees to be excluded from the bargaining-unit; and
vi) informing FTST employees and the College in writing that the those
employees were excluded from the bargaining-unit and all matters related to 40
bargaining a successor collective-bargaining agreement for the bargaining-unit.
4. By refusing to recognize the FTST employees as included in the bargaining-unit and
informing the College that it did not recognize those employees as being included in the
bargaining-unit, thereby insisting that the College not apply the collective-bargaining agreement 45
terms to certain members of the bargaining unit, PFAC has restrained and coerced employees in
violation of Section 8(b)(1)(A) of the Act and has attempted to cause the College to discriminate
JD–34–18
25
against its employees in violation of Section 8(a)(3) of the Act, in violation of Section 8(b)(2) of
the Act.
5. By refusing to process grievances filed by FTST employees concerning job assignments
because PFAC refused to recognize those employees as included in the bargaining-unit, thereby
insisting that the College not apply the collective-bargaining agreement’s terms to certain 5
members of the bargaining-unit, PFAC has restrained and coerced employees in violation of
Section 8(b)(1)(A) of the Act and has attempted to cause the College to discriminate against its
employees in violation of Section 8(a)(3) of the Act, in violation of Section 8(b)(2) of the Act.
6. By continuing to seek enforcement of an arbitration award that is incompatible with the
Board's representational case decision in Case 13–RC–146452 and that precludes the College 10
from applying the parties’ collective-bargaining agreement to FTST employees in the
bargaining-unit, PFAC has insisted on bargaining for a change in the scope of the existing
bargaining unit and has thereby refused to bargain in good faith with the College in violation of
Section 8(b)(3) of the Act.
7. By filing and maintaining grievances and by filing a lawsuit seeking to force the 15
arbitration of those grievances, which, in part, sought to preclude the College from applying the
collective-bargaining agreement’s terms to FTST employees in the bargaining-unit, PFAC has
insisted on bargaining for a change in the scope of the existing bargaining-unit and has thereby
refused to bargain in good faith with the College in violation of Section 8(b)(3) of the Act.
8. By refusing to negotiate on behalf of FTST employees in the bargaining-unit in 20
negotiations for a successor collective-bargaining agreement, PFAC violated Section 8(b)(1)(A)
and (3) of the Act.
9. The above unfair labor practices affect commerce within the meaning of Section 2(6) and
(7) of the Act.
25
REMEDY
Having found that the Respondent has engaged in unfair labor practices within the meaning
of Section 8(b)(1)(A), (2), and (3) of the Act, I shall order that it cease and desist and take certain
affirmative action designed to effectuate the policies of the Act. I shall order Respondent, to the 30
extent it has not already done so, to withdraw or if necessary otherwise seek dismissal of the
lawsuits in Part-time Faculty Association at Columbia College Chicago v. Columbia College
Chicago No. 17-CV-513, seeking enforcement of the January 11, 2017 arbitration award, and
Part-time Faculty Association at Columbia College Chicago v. Columbia Chicago No. 17-CV-
4203, seeking to force arbitration of the grievances which, in part, requested the College refrain 35
from assigning the FTST bargaining-unit work because of PFAC’s contention that they are
excluded from the bargaining unit, and to reimburse the College for all reasonable expenses and
legal fees, with interest, that the College incurred after February 14, 2017, the date of issuance of
the Board's representational case order, in defending against these two lawsuits. Interest shall be
computed as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as 40
prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). See New York New Jersey
Regional Joint Board (Brooks Brothers), 365 NLRB No. 61 (2017) and Teamsters Local 776
(Rite Aid Corp.), 305 NLRB 832) (1991).
45
JD–34–18
26
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended17
ORDER
5
The National Labor Relations Board orders that the Respondent, Part-time Faculty
Association at Columbia, its officers, agents, and representatives, shall
1. Cease and desist from
10
(a) Refusing to recognize certain employees, referred to as FTST employees, as
bargaining unit members.
(b) Requesting that the College not treat FTST employees as bargaining-unit
members or afford them the work assignment preferences given to bargaining-unit 15
employees under the collective-bargaining agreement.
(c) Refusing to process grievances pursuant to the collective-bargaining agreement on
the behalf of FTST employees as members of the bargaining-unit because of its refusal to
recognize those members.20
(d) Maintaining grievances which attempted to compel the College to exclude FTST
employees from the bargaining unit precluding them from work assignments under the
collective-bargaining agreement.
25
(e) Informing FTST employees of the bargaining-unit and the College in writing that
the FTST employees were excluded from the bargaining-unit and all matters related to
bargaining a successor collective-bargaining agreement for the bargaining-unit.

(f) Refusing to recognize FTST employees as included in the bargaining-unit and informing 30
the College that it did not recognize those employees as being included in the bargaining-unit,
thereby insisting that the College not apply the collective-bargaining agreement terms to FTST
employees as members of the bargaining-unit thereby insisting on bargaining for a change in the
scope of the existing bargaining unit and has thereby refused to bargain in good faith with the
College.35
(g) Refusing to process grievances filed by FTST employees concerning job assignments
because PFAC refused to recognize FTST employees as included in the bargaining-unit, thereby
insisting that the College not apply the collective-bargaining agreement’s terms to FTST
employees as members of the bargaining-unit.40
(h) Maintaining a lawsuit seeking enforcement of Arbitrator Robert Perkovich’s
January 11, 2017 Award, which is incompatible with the Board's representational

17 If no exceptions are filed as provided by Sec. 102.48 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
JD–34–18
27
decision in Case 13–RC–146452 and precludes the College from applying the collective-
bargaining agreement to FTST employees in the bargaining-unit.
(i) Filing and maintaining a lawsuit seeking to force the arbitration of grievances,
which, in part, seek to preclude the College from applying the collective-bargaining 5
agreement’s terms to FTST employees in the bargaining-unit.
(j) Refusing to negotiate on behalf of FTST employees in the bargaining-unit in
negotiations for a successor collective-bargaining agreement.
10
(k) In any like or related manner restraining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
15
(a) Recognize FTST employees as bargaining unit members and inform the College of its
recognition of those members.
(b) Requesting that the College treat FTST employees as bargaining-unit members
and afford them the work assignment preferences given to bargaining-unit employees 20
under the collective-bargaining agreement.
(c) Process grievances pursuant to the collective-bargaining agreement on the behalf
of FTST employees as members of the bargaining-unit.
25
(d) Withdraw grievances, or portions thereof, which attempted to compel the College
to exclude FTST employees from the bargaining-unit precluding them from work
assignments under the collective-bargaining agreement.
(e) Inform FTST employees of the bargaining-unit and the College in writing that the 30
FTST employees are represented by PFAC in all matters related to bargaining a successor
collective-bargaining agreement for the bargaining-unit.
(f) To the extent not already done so, withdraw or if necessary otherwise seek dismissal of
any action in Case 17-CV-513 in the United States District Court for the Northern District of 35
Illinois Eastern Division.
(g) Reimburse the College for all reasonable expenses and legal fees incurred since February
14, 2017, in defense of Case 17-CV-513 in the United States District Court for the Northern
District of Illinois Eastern Division, with interest as set forth in the remedy section of this 40
decision.
(h) To the extent not already done so, withdraw or if necessary otherwise seek dismissal of
any action in Case 17-CV-4203 in the United States District Court for the Northern District of
Illinois Eastern Division.45
JD–34–18
28
(i) Reimburse the College for all reasonable expenses and legal fees incurred since February
14, 2017, in defense of Case 17-CV-4203 in the United States District Court for the Northern
District of Illinois Eastern Division, with interest as set forth in the remedy section of this
decision.
5
(j) Within 14 days from the date of this Order, notify the College and the FTST employees,
in writing, that it rescinds its request for the College to exclude FTST employees from the
bargaining-unit precluding them from work assignments under the collective-bargaining
agreement.
10
(k) Make the FTST employees whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set forth in the remedy section of this
decision, and to the extent that the College has already made any of the FTST employees whole
for any loss of earnings and other benefits suffered as a result of the discrimination against them,
in the manner set forth in the remedy section of this decision, reimburse the College for half of 15
that amount.
(l) Compensate the FTST employees for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and to the extent that the College has already fully compensated any
of the FTST employees for the adverse tax consequences, reimburse the College for half of that 20
amount.
(m) Within 14 days from the date of this Order, remove from its files any reference to not
recognizing any FTST employee as a bargaining unit member, and within 3 days thereafter,
notify the FTST employees in writing that this has been done and that any prior refusal to 25
recognized the FTST employees as bargaining-unit members will not be used against them in
any way.
(n) Within 14 days after service by the Region, post at its offices and meeting halls and all
other places where notices to its members are customarily posted, copies of the attached notice 30
marked “Appendix.”10 Copies of the notice, on forms provided by the Regional Director for
Region 13, after being signed by the Respondent's authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in conspicuous places, including all
places where notices to members are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by email, posting on an intranet or an 35
internet site, and/or other electronic means, if the Respondent customarily communicates with its
members by such means. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material.
(o) Within 14 days after service by the Region, deliver to the Regional Director for Region 40
13 signed copies of the notice in sufficient number for posting by the College at its Chicago,
Illinois facilities, if it wishes, in all places where notices to employees are customarily posted.
(p) Within 21 days after service by the Region, file with the Regional Director for Region 13
a sworn certification of a responsible official on a form provided by the Region attesting to the 45
steps that the Respondent has taken to comply.
JD–34–18
29
Dated, Washington, D.C. May 24, 2018
5
___________________________________
Kimberly Sorg-Graves
Administrative Law Judge
10
V.4~^ Ai--1-_JUiorle4g--
JD–34–18
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
FEDERAL LAW GIVES YOU THE RIGHT TO:
• Form, join, or assist a union;
• Choose a representative to bargain with us on your behalf;
• Act together with other employees for your benefit and protection;
• Choose not to engage in any of these protected activities.
WE WILL NOT refuse to recognize certain employees, referred to as FTST employees,
as bargaining unit members.
WE WILL NOT request that the College refuse to treat FTST employees as bargaining-
unit members or afford them the work assignment preferences given to bargaining-unit
employees under the collective-bargaining agreement.
WE WILL NOT refuse to process grievances pursuant to the collective-bargaining
agreement on the behalf of FTST employees as members of the bargaining-unit because
of our refusal to recognize those members.
WE WILL NOT maintain grievances which attempted to compel the College to exclude
FTST employees from the bargaining-unit precluding them from work assignments under
the collective-bargaining agreement.
WE WILL NOT informing FTST employees of the bargaining-unit and the College that
the FTST employees were excluded from the bargaining-unit and all matters related to
bargaining a successor collective-bargaining agreement for the bargaining-unit.

WE WILL NOT refuse to recognize FTST employees as included in the bargaining-unit and
inform the College that we do not recognize those employees as being included in the
bargaining-unit, thereby insisting that the College not apply the collective-bargaining agreement
terms to FTST employees as members of the bargaining-unit, thereby insisting on bargaining for
a change in the scope of the existing bargaining unit, and thereby refusing to bargain in good
faith with the College.
WE WILL NOT refuse to process grievances filed by FTST employees concerning job
assignments because we refused to recognize FTST employees as included in the bargaining-
unit, thereby insisting that the College not apply the collective-bargaining agreement’s terms to
FTST employees as members of the bargaining-unit, thereby insisting on bargaining for a change
in the scope of the existing bargaining unit, and thereby refusing to bargain in good faith with the
College.
JD–34–18
WE WILL NOT maintain a lawsuit seeking enforcement of Arbitrator Robert
Perkovich’s January 11, 2017 Award, which is incompatible with the Board's
representational decision in Case 13–RC–146452 and precludes the College from
applying the collective-bargaining agreement to FTST employees in the bargaining-unit.
WE WILL NOT file and maintain a lawsuit seeking to force the arbitration of grievances,
which, in part, seek to preclude the College from applying the collective-bargaining
agreement’s terms to FTST employees in the bargaining-unit.
WE WILL NOT refuse to negotiate on behalf of FTST employees in the bargaining-unit in
negotiations for a successor collective-bargaining agreement.
WE WILL NOT in any like or related manner restraining or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL recognize FTST employees as bargaining unit members and inform the College of
our recognition of those members.
WE WILL request that the College treat FTST employees as bargaining-unit members
and afford them the work assignment preferences given to bargaining-unit employees
under the collective-bargaining agreement.
WE WILL process grievances pursuant to the collective-bargaining agreement on behalf
of FTST employees as members of the bargaining-unit.
WE WILL withdraw grievances, or portions thereof, which attempted to compel the
College to exclude FTST employees from the bargaining-unit precluding them from work
assignments under the collective-bargaining agreement.
WE WILL inform FTST employees of the bargaining-unit and the College in writing
that the FTST employees are represented by PFAC in all matters related to bargaining a
successor collective-bargaining agreement for the bargaining-unit.
WE WILL to the extent not already done so, withdraw or if necessary otherwise seek dismissal
of any action in Case 17-CV-513 in the United States District Court for the Northern District of
Illinois Eastern Division.
WE WILL reimburse the College for all reasonable expenses and legal fees incurred since
February 14, 2017, in defense of Case 17-CV-513 in the United States District Court for the
Northern District of Illinois Eastern Division, with interest as set forth in the remedy section of
this decision.
WE WILL to the extent not already done so, withdraw or if necessary otherwise seek dismissal
of any action in Case 17-CV-4203 in the United States District Court for the Northern District of
Illinois Eastern Division.
JD–34–18
WE WILL reimburse the College for all reasonable expenses and legal fees incurred since
February 14, 2017, in defense of Case 17-CV-4203 in the United States District Court for the
Northern District of Illinois Eastern Division, with interest as set forth in the remedy section of
this decision.
WE WILL within 14 days from the date of this Order, notify the College and the FTST
employees, in writing, that we rescind our request for the College to exclude FTST employees
from the bargaining-unit precluding them from work assignments under the collective-bargaining
agreement.
WE WILL make the FTST employees whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the manner set forth in the remedy
section of this decision, and to the extent that the College has already made any of the FTST
employees whole for any loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the remedy section of this decision, WE
WILL reimburse the College for half of that amount.
WE WILL compensate the FTST employees for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and to the extent that the College has already fully
compensated any of FTST employees for the adverse tax consequences, WE WILL reimburse the
College for half of that amount.
WE WILL within 14 days from the date of this Order, remove from its files any reference to not
recognizing any FTST employee, and within 3 days thereafter, notify the FTST employees in
writing that this has been done and that any prior refusal to recognize the FTST employees will
not be used against them in any way.
PART-TIME FACULTY ASSOCIATION AT COLUMBIA COLLEGE
(Labor Organization)
Dated:________________ By:__________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Dirksen Federal Building, 219 South Dearborn Street, Room 808, Chicago, IL 60604-1443
(312) 353-9158, Hours: 8:30 a.m. to 5 p.m.
JD–34–18
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/13-CB-165873 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (312) 353-7170.