The Trustees Of Columbia University

National Labor Relations Board - Board Decisions

Mar 31, 1986

279 N.L.R.B. 130 (N.L.R.B. 1986)

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trustees of Columbia University in the City of
New York and Local 32B-32J, Service Employ-
ees International Union, AFL-CIO. Case 2-
CA-18364
31 March 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND DENNIS
On 31 October 1983 Administrative Law Judge
Raymond P. Green issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Charging Party filed cross-exceptions
and a brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the National Labor Rela-
tions Act by unilaterally discontinuing a tuition ex-
emption benefit and Section 8(a)(3) and (1) by
doing so in retaliation for the Union's enforcing
payments to a contractual training and scholarship
benefit fund. For the reasons below we shall defer
to the arbitration award resolving the matter and
shall dismiss the 8(a)(5) and (3) allegations.
Since at least 1936, Columbia University has rec-
ognized the Service Employees Union as the repre-
sentative of certain building service employees.
Before 1977, when it joined the multiemployer
Realty Advisory Board (RAB), Columbia individ-
ually signed agreements identical to the RAB
agreements . The most recent agreement relevant to
the events in issue was effective from April 1979 to
April 1982.
Successive bargaining agreements required em-
ployers to contribute to the contractual health ben-
efit and pension funds unless an employer provided
equivalent or better benefits. Columbia exercised
this option and used its own plans. In early 1980
the Union became aware that, unlike the contrac-
tual plan, Columbia's health benefit plan required
employee contributions. The Union grieved and
held a series of meetings with Columbia in the
summer of 1980. During the meetings the Union
learned that Columbia had not been contributing to
the Thomas Shortman Training and Scholarship
Fund as provided by the bargaining agreement.
The Shortman Fund was established in 1974 to
help pay for and to provide scholarships to a
union-run school for members to upgrade their
skills in the industry.
The Shortman Fund problem was minor com-
pared to the health benefit problem and occasioned
little discussion. Columbia contended that it was
not required to make payments to the Shortman
Fund because it instead provided employees with a
tuition exemption plan. That plan permitted em-
ployees, their spouses, and their children to take up
to seven credits per semester free of charge. The
Union filed a grievance over the Shortman Fund.
At the final meeting in September 1980 Columbia
said that if the Union sought to compel it to con-
tribute to the Shortman Fund, it would cancel the
tuition exemption plan. The Union said it intended
to proceed to arbitration.'
On 22 December 1980 and 12 January 1981, Wil-
liam J. Glinsman, one of five contract arbitrators
named in the bargaining agreement, heard the
Shortman Fund grievance. In a discussion before
the hearing, Columbia's director of labor relations
told the Union's representative that, if arbitration
resulted in an obligation to pay into the Shortman
Fund, Columbia would cancel the tuition exemp-
tion program. At arbitration Columbia took the po-
sition that it was exempt from the Shortman Fund
payments because it provided free tuition for its
unit employees and their families. The Fund con-
tended there never was a quid pro quo and Colum-
bia was required to make the fund payment retro-
actively from 1 January 1974. On 16 March 1981
Arbitrator Glinsman issued his award finding that
Columbia failed to sustain its contention that the
Union waived contributions to the fund, that the
contract language was unambiguous, and that Co-
lumbia had to pay the Shortman Fund $9735.03.
Specifically, Arbitrator Glinsman found:
I have carefully reviewed the pertinent lan-
guage of the Contract and the pertinent lan-
guage of the Trust Agreement for Thomas
Shortman Fund and find them not susceptible
to more than one interpretation. Accordingly,
I have no choice but to apply the facts at
hand, no matter what reservations about the
fairness of the results or the morality of invok-
ing these clauses in the instant situation. If the
language was ambiguous, I would consider the
Employer's argument of mitigation based on
past practice as equitable. But here, the lan-
guage is not ambiguous and must be honored
even in the face of distasteful results. Other-
wise, the Contract would become not what the
' Columbia then internally suspended or terminated the plan, but in-
formed neither the Union nor the employees
279 NLRB No. 19
COLUMBIA UNIVERSITY
parties made it but what the arbitrator is per-
sonally disposed to make of it.
Throughout the relevant period no unit employ-
ee applied for tuition exemption until August 1981
when an employee applied for his daughter. Co-
lumbia denied the application . The Union grieved,
and on 15 September 1981 Columbia , through its
attorney , replied that it denied the application be-
cause Columbia was required to contribute to the
Shortman Fund . The Union , on the advice of coun-
sel, withdrew its grievance and filed the unfair
labor practice charge . On 30 November 1981 the
Regional Director notified the parties that he was
deferring the charge to the grievance -arbitration
procedure . The Regional Director stated that the
Union alleged "that the Employer unilaterally re-
scinded its tuition exemption benefit for employees
represented by [the Union] in retaliation for [the
Union's] enforcement of the collective-bargaining
agreement and without bargaining with [the
Union]."
The Union took the matter to arbitration. Its 7
December 1981 submission letter stated in part:
The above mentioned employer , for more than
20 years, has established and maintained a tui-
tion assistance program for the benefit of
Local 32B-32J members and their immediate
family.
On or about October 1, 1981, the employer
unilaterally terminated this benefit . It is the po-
sition of the Union that the tuition assistance
program is a better term and condition re-
ceived by Columbia employees which may not
be unilaterally terminated by Columbia Uni-
versity.
On 6 May 1982 Contract Arbitrator Glinsman
heard the grievance . Both the Union's submission
letter and the Regional Director 's deferral letter
were before him. On 18 May 1982 Arbitrator
Glinsman denied the grievance.
In his award Arbitrator Glinsman, after quoting
from the Union 's submission letter, stated:
At the hearing, the testimony and evidence
adduced revealed that Employees of Columbia
University were allowed to participate in the
University 's tuition exemption plan. The Em-
ployer offered the tuition exemption plan to its
32B-32J Employees in lieu of payments to the
Thomas Shortman Fund until March 16, 1981
when the Employer withdrew the tuition ex-
emption based on an arbitration Award involv-
ing the tuition plan.
131
Arbitrator Glinsman set out the parties ' positions-
that the Union contended the tuition plan was a
prior better benefit required by the contract and
that Columbia argued that the contract limited
better conditions to specific benefits . Arbitrator
Glinsman quoted from the contract:
If employees in any building had in effect on
April 21, 1976 , a practice of terms or condi-
tions better than those provided for herein, ap-
plicable generally to them for wages, hours, sick
pay, vacations, holidays, relief periods, jury duty,
or group life insurance , such better terms or
conditions shall be continued . . . . [Arbitra-
tor's emphasis.]
Arbitrator Glinsman found the contract language
clear and unambiguous , applied the language to the
facts , and concluded , "The Employer did not vio-
late the Contract and is not required to maintain
the tuition exemption program ." (Emphasis added.)
The judge found that the arbitrator did not con-
sider whether Columbia breached its duty to bar-
gain over withdrawal of the tuition exemption ben-
efit , but decided only that Columbia did not breach
the contract . On this basis the judge rejected defer-
ral. We do not agree . The Union 's attorney at the
tuition plan arbitration testified before the judge
that he told the arbitrator that the only reason they
were before him was to determine the contract
question and that the Union did not attempt to
adduce evidence before the arbitrator that Colum-
bia's actions violated the Act . Nonetheless, based
on the Regional Director 's deferral letter, the
Union's submission letter , the Shortman Fund arbi-
tration award , and the tuition plan arbitration
award, we find that the arbitrator effectively re-
solved the breach of bargaining duty issue as well
as the breach of contract issue.
The Union and Columbia agreed to be bound by
arbitration , and the arbitration proceedings were
fair and regular . For the reasons set out below we
find that the arbitrator was presented generally
with the facts relevant to resolving the unfair labor
practice issue and that , as effectively resolved by
the arbitrator , the contractual issue was factually
parallel to the unfair labor practice issue . We also
find that the award is not clearly repugnant to the
purposes and policies of the Act. Not only has the
General Counsel failed to show that our deferral
standards have not been met, but the record shows
to the contrary that they have been . Accordingly,
we find that the arbitration award meets the Spiel-
berg2 and Olin3 standard's for deferral.
2 Spielberg Mfg Co, 112 NLRB 1080 (1955)
3 Olen Corp , 268 NLRB 573 (1984 ) We note that Olin issued subse-
quent to the judge's decision herein
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The arbitrator was aware, through the submis-
sion letter and the deferral letter , that the tuition
exemption plan was a long-established past prac-
tice, that Columbia withdrew the plan , and that the
withdrawal allegedly violated the Act . The arbitra-
tor first found that Columbia 's withdrawal of the
tuition exemption plan did not violate the contract.
The arbitrator did not , however, limit himself to
that issue but also found that Columbia was not re-
quired to maintain the tuition exemption program.
In essence, the arbitrator found that Columbia's
paying the Shortman Fund benefits released it from
the tuition exemption plan.
In the first arbitration , the arbitrator considered
one side of the issue-whether the tuition exemp-
tion plan was a substitute for the Shortman Fund,
as contended by Columbia . The arbitrator rejected
Columbia 's contention , but did so on the grounds
that the contract specifically required Columbia to
pay the Shortman Fund benefit . The arbitrator, al-
though expressing reservations about the fairness of
his award , found that the unambiguous contractual
language overrode past practice . Significantly, the
arbitrator did not hold that Columbia had to pro-
vide both benefits or that the Shortman Fund was
not an alternative to the tuition exemption plan.
In the second arbitration , the arbitrator consid-
ered the other side of the issue-whether Colum-
bia's payment of the Shortman Fund benefits was a
substitute for the tuition exemption plan. The arbi-
trator found that it was. The plans had more than
superficially similar purposes . The arbitrator stated
that Columbia had taken the position that the tui-
tion benefit plan was a substitute for the Shortman
Fund plan and that Columbia withdrew the plan,
effective 16 March 1981 , the date of the prior arbi-
tration award . Thus , the arbitrator found that, be-
cause he had ordered Columbia to make the Short-
man Fund payments, Columbia did not have to
provide the tuition exemption plan.
The arbitrator 's awards, when read together,
meet our deferral standards . The arbitrator found,
on the facts presented to him that the parties' con-
tract overrode past practice , that the contract re-
quired Columbia to pay the Shortman Fund bene-
fit, and that Columbia therefore did not have to
provide the related tuition exemption benefit. Thus,
the arbitrator determined that Columbia and the
Union contractually agreed that the Shortman
Fund took precedence over and was a substitute
for the existing tuition exemption benefit. Accord-
ingly, we find that the arbitrator effectively re-
solved the unfair labor practice allegation. In addi-
tion, we find that the arbitrator 's decision is not
clearly repugnant to the Act's purposes and poli-
cies because it is susceptible to a permissible inter-
pretation , namely, that Columbia and the Union
contractually resolved the matter . Accordingly, we
shall defer this aspect of the complaint to the arbi-
trator 's decision.
The complaint also alleged that Columbia violat-
ed Section 8(a)(3) by withdrawing the tuition bene-
fit plan in retaliation for the Union 's successfully
pursuing the Shortman Fund grievance . In its reply
to the tuition exemption grievance , Columbia stated
that it withdrew the tuition exemption because it
was required to pay the Shortman Fund benefits.
This was Columbia 's position throughout-that it
did not have to provide both benefits . As this is the
only evidence in support of the 8 (a)(3) allegation,
the proof of that allegation depends on the proof of
the 8(a)(5) allegation . We are, however, deferring
to the arbitrator 's award finding that Columbia did
not have to provide both benefits and are therefore
dismissing the 8 (a)(5) allegation . Accordingly, we
shall also dismiss the related 8(a)(3) allegation.
ORDER
The complaint is dismissed.
James Wasserman , Esq., for the General Counsel.
Charles Strahley, Esq. (Putney, Twombly, Hall & Hirson)
of New York, New York, for the Respondent.
Michael Geffner, Esq. (Israelson , Manning & Raab), of
New York , New York , for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P . GREEN, Administrative Law Judge. This
case was heard by me in New York, New York, on
August 8, 1983. The charge was filed on October 6,
1981, and the complaint was issued on March 8, 1983. In
substance, the complaint alleges that in retaliation of the
Union's action of enforcing certain provisions of its col-
lective-bargaining agreement , the Respondent unilateral-
ly terminated a longstanding noncontractual benefit, i.e.,
a tuition exemption program which permitted its employ-
ees or their dependents to take seven credits per semester
at the University free of charge. The complaint alleges
that in this respect the Respondent violated Section
8(a)(1), (3), and (5) of the Act.
The Respondent contends : ( 1) that the decision to ter-
minate the benefit and the announcement of that decision
was made more than 6 months prior to the filing of the
charge and therefore the allegation should be barred pur-
suant to the statute of limitations set forth in Section
10(b) of the Act; (2) that it did , in fact, notify and bar-
gain with the Union concerning this decision ; and (3)
that the Board should defer to an arbitration award re-
garding this dispute.
Based on the entire record in this case , including my
observation of the demeanor of the witnesses and after
considering the briefs filed , I make the following
COLUMBIA UNIVERSITY 133
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation, is engaged
in the operation of a private university. Annually, the
Respondent has gross revenues in excess of $1 million
and purchases and receives at its New York facilities
goods and materials valued in excess of $50,000 directly
from firms located outside the State of New York. It
therefore is concluded that the Respondent is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
All parties agree that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE COLLECTIVE-BARGAINING HISTORY
The Respondent and the Union have maintained a col-
lective-bargaining relationship for about 30 years. The
employees involved (numbering about 250) are people
who work in various of the University's off- campus
buildings . Basically, they are employed as porters, build-
ing superintendents , handymen, and doormen. Prior to
1977, the University and the Union had a practice
wherein the University agreed to be bound by a collec-
tive-bargaining agreement negotiated between the Union
and the Realty Advisory Board, the latter being an em-
ployer association which bargains with the Union on
behalf of its employer-members . In 1977 the University
joined the Realty Advisory Board (the RAB).
In 1973 or 1974 there was established, pursuant to ne-
gotiations between the RAB and the Union, the Thomas
Shortman Training and Scholarship Fund. The purpose
of the fund was to provide training for the Union's mem-
bership to enable them to upgrade their skills in the in-
dustry. Each successive contract between the RAB and
the Union required the employers to make contributions
to this fund. I
It also appears that for many years Columbia Universi-
ty had maintained a benefit called the tuition exemption
program, pursuant to which all its full-time employees or
their dependents could take seven credits per semester at
the University without charge. Although the record re-
veals that this benefit was not often used by the employ-
ees in this bargaining unit , it must be said that it was not
an insubstantial benefit for those who could take advan-
tage of it, especially considering the high cost of tuition
these days. It is also noted that this benefit is not referred
to in the contract between the University and the Union
and therefore stands as a noncontractual benefit. There
was no evidence that the tuition exemption program was
ever discussed during any collective-bargaining negotia-
tions between the Respondent and the Union.
With respect to the Shortman Fund vis a vis the tui-
tion exemption program, Ross Rimicci, the employer's
director of employee relations , testified that there was a
i As of the time of the hearing the contracting employers were re-
quired to contribute $13 per employer per year to the Shortman Fund
The Fund operates a school located in New York City
"tacit" understanding that the tuition exemption program
was a quid pro quo for, and in lieu of, the Shortman
Fund. However, there is absolutely no evidence that
there was any agreement to this effect, whether tacit or
otherwise. Indeed the testimony of Ronald Goldman,
who was the Respondent's director of real estate man-
agement, tended to establish the contrary.
The Operative Facts
The contracts between the Union and Columbia have
allowed the University to maintain its own health and
pension plans and to refrain from making contributions
to similar plans administered by the Union, provided that
the plans were comparable. As a result, Columbia has
not contributed to these union plans.
In 1979 or 1980, the Union learned that bargaining unit
employees of Columbia were being required to make
contributions to the University's health plan whereas the
Union's health plan was noncontributory. Because of
this, the Union filed a grievance and a series of meetings
were held in June, July, August, and September 1980.
During these meetings it was the Employer's contention
that, notwithstanding the contributory aspect, the Uni-
versity's health plan, when considered in light of the
total benefit pacakage for its employees (including the
tuition exemption program) was comparable to the
Union's plan and that there was no violation of the con-
tract.
It appears that during the aforesaid meetings it was
also discovered by the Union that the Employer had not
made any contributions to the Shortman Fund and this,
too, was raised.2 According to Rimicci, he maintained at
these meetings that the tuition exemption program was a
benefit provided to the employees in lieu of the Short-
man Fund and he took the position that the Union could
not insist on having both benefits. (As noted above, there
is no evidence to show that the Union and the Employer
had ever agreed that the tuition exemption program was
to be in lieu of the Shortman Fund). Rimicci states that
at the meeting of September 4, 1980, when the Union no-
tified the Employer that it was going to seek arbitration
over the failure to make payments to the Shortman
Fund, he advised Kevin McCulloch, the Union's assistant
to the president, that if the Union sought to compel the
University to contribute to the Fund, he would terminate
the tuition exemption program. Thereafter, according to
Rimicci, he orally advised Golden and a Graham (the
University's director of faculty services) to terminate the
program vis a vis employees represented by the Union.
The record shows, however, that neither the Union nor
the employees were notified of this purported decision
and as no bargaining unit employees applied to the pro-
gram at that time, none were turned down. It is also
noted that no memorandum was ever made of this deci-
sion.
2 According to Union Representative Kevin McCulloch, the Union
had neglected to bill Columbia for the Shortman Fund because of an
oversight He explains that the billing for this fund was done as a supple-
ment to the billings under the health fund and because Columbia did not
contribute to the contractual health fund, it was not billed for the Short-
man Fund
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequent to the September 4 meeting , the Union
proceeded to arbitration over the Shortman Fund dis-
pute . A hearing on that matter was held on December
22, 1980, and January 12 , 1981. According to Rimicci, at
the time of the hearings he told the Union's representa-
tives, in effect , that if the arbitration resulted in an obli-
gation to pay to the Shortman Fund , the University
would discontinue the tuition exemption program for the
employees represented by the Union.
On March 16 , 1981, the arbitrator issued his opinion
and award regarding the Shortman Fund . He held that
the Employer was contractually bound to make pay-
ments to the Fund . In reaching his conclusion , he held
that the evidence did not support the Employer 's conten-
tion that the Union had waived contributions to the
Fund. As a result, the Respondent was required to make
retroactive payments in the amount of $9,735 .03 and to
make future payments to the Fund.
Between September 4, 1980 , and July 1981 , no union
employees applied for the tuition exemption program.
However , sometime in August 1981, employee Eustace
Mejias did file an application on behalf of his daughter
who was going to attend Barnard College , which is af-
filiated with Columbia. According to McCulloch, when
he learned that the application was denied , he called Ri-
micci in late August and was told that Rimicci would
look into the matter . When McCulloch received no
answer, he wrote a letter to Rimicci on September 3,
1983, which stated:
Attn: Mr. Ross A. Rimicci
Director of Employee Relations
Re: 410 Riverside Drive
Eustace Mejias
Dear Mr. Rimicci:
Approximately two weeks ago, we contacted you
with regard to the application for tuition assistance
with regard to the daugther of the above-mentioned
member. You assured us that you would investigate
the matter and respond with the policy of Columbia
University.
Since you have not responded as promised, we
can only assume that it is the position of Columbia
that the employee is not entitled to the benefits. We
will therefore take appropriate action.
Also on September 3, McCulloch sent a letter to the
Joint Industry Grievance Committee which stated, inter
alia:
Approximately two years ago, the Union discov-
ered that the employer was requiring employees to
contribute to the Major Medical Plan and initiated a
grievance to stop the practice . In retaliation for ini-
tiating that grievance , the employer has eliminated a
tuition assistance program for the benefit of the em-
ployees which had been in effect for many years.
The Union is demanding the continuation of the
program with respect to the daughter of the above-
mentioned member , and any and all other employ-
ees of Columbia who are members of Local 32B-
32J and are affected by the change in policy.
Since the employer has failed and refuses to re-
spond to the inquiries by the Union, we request that
this matter be scheduled for a Joint Industry Griev-
ance hearing.
On September 15, 1984, the University through its at-
torney, Joseph Paruda replied:
Columbia University has asked me to comment
on your letter of September 3, 1981, in the above
matter, addressed to the Joint Industry Grievance
Committee.
We strongly disagree with your allegations in
paragraph two of your letter since they are totally
inaccurate , irresponsible and show a complete lack
of knowledge of the facts.
On December 22, 1980 and January 12, 1981,
during the arbitration hearing on the University's
non-payment to the Thomas Shortman Training and
Scholarship Fund, the University stated that it
would not make contributions to the Shortman
Fund and provide tuition exemption for the employ-
ee and family . The tuition exemption program is not
part of the collective bargaining agreement . William
J. Glinsman, the contract arbitrator, in his award of
March 16, 1981, decided that under the terms of the
agreement the University must contribute to the
Shortman Fund. This was the reason that Mr.
Mejias was denied tuition exemption.
At no time was there any correlation between the
tuition exemption program and the major medical
grievance which is still pending decision from the
arbitrator. Briefs were due on August 28, 1981 on
the major medical issue and as of this date , only the
University has filed a brief.
Following receipt of the University's September 15
letter, the Union withdrew its grievance relative to
Mejias upon its attorney's advice that the matter was not
arbitrable under the contract. Instead it filed the instant
charge on October 6, 1981. On November 19, 1981, the
Respondent advised the Regional Director that it was
willing to arbitrate the dispute over the tuition exemp-
tion program and on November 20, 1981, the Regional
Director notified all parties that he was deferring further
action pending arbitration pursuant to the Board 's Collyer
doctrine.
In proceeding to arbitration, as required by the Re-
gional Director's letter of November 20, the Union
framed the issue as follows:
The above mentioned employer, for more than 20
years, has established and maintained a tuition assist-
ance program for the benefit of Local 32B-32J
members and their immediate family.
On or about October 1, 1982, the employer uni-
laterally terminated his benefit. It is the position of
the Union that the tuition assistance program is a
better term and condition received by Columbia
employees which may not be unilaterally terminated
by Columbia University.
COLUMBIA UNIVERSITY
In support of its position before the arbitrator, the
Union relied on article III, section 3, of the contract
which reads:
No provision of this agreement shall be construed
so as to lower any employee 's wage . If employees
in any building had in effect on April 21, 1976, a
practice of terms or conditions better than those
provided for herein , applicable generally to them
for wages , hours , sick pay, vacations , holidays,
relief periods , jury duty , or group life insurance,
such better terms or conditions shall be continued
only for employees employed by the Employer on
April 21 , 1976. Any employee who acquired a
better term or condition after April 21 , 1976, shall
continue to receive same . The Arbitrator may re-
lieve the obligations in the preceding sentence if en-
forcement would work an undue hardship , injustice
or inequity upon the employer.
On May 18 , 1982, the arbitrator issued his opinion and
award in which he concluded that the tuition exemption
program was not one of the benefits referred to in article
III, section 3, and that the Employer did not breach the
contract by terminating the program . Although it ap-
pears that the arbitrator was made aware of the fact that
the dispute was pending before the Board, there is, to
my mind , no indication in his decision or in this record
that he also considered the unfair labor practice issue.
Nor does his decision rely on , or assert that anything in
the collective -bargaining agreement could be construed
as a contractual waiver of the Union 's right to bargain
over the decision by the University to terminate the tui-
tion exemption program . In short , it is clear to me that
the arbitrator decided the issue solely on the question of
whether there was a contract breach. As the benefit in-
volved was a noncontractual benefit , his decision is
hardly surprising , albeit not dispositive of the issue
before me.
Analysis
The evidence shows that for at least 18 years the Uni-
versity has maintained a practice of providing for all its
full-time employees (including the employees represented
by Local 32B-32J) a tuition exemption program pursuant
to which either the employees or their dependents would
receive up to seven free tuition credits per semester if
they attended Columbia University. Given this long-
standing practice , this benefit must be considered as
much as a term or condition of employment as any other
employee fringe benefit . 3 As such , it is concluded that
this benefit is a mandatory subject of bargaining which
may not be unilaterally discontinued without first offer-
ing the Union a good-faith opportunity to bargain. The
fact that the benefit has not been memorialized in a col-
lective-bargaining agreement does not mean that the Re-
spondent may terminate the benefit at its whim without
bargaining , unless there is evidence , not shown here, that
3 For example, the Board and the courts have held that Christmas bo-
nuses are a part of employee wages when they have been given over an
extended period of time See Radio Television School v NLRB, 488 F 2d
457 (3d Cir 1973)
135
the Union had clearly and unambiguously waived its
right to bargain over the subject matter.'
In Rockwell International Corp., 260 NLRB 1345, 1347
(1982), the Board stated:
The duty to bargain continues during the existence
of a bargaining agreement concerning any mandato-
ry subject of bargaining which has not been specifi-
cally covered in the contract and regarding which
the union has not clearly and unmistakenly waived
its right to bargain.
In Road Sprinkler Fitters Local 669 v. NLRB , 676 F.2d
826 at 831 (D.C. Cir . 1982), the court stated:
An employer has a duty to bargain with the rep-
resentative of his employees before unilaterally
changing the terms and conditions of their employ-
ment . This statutory duty to bargain is independent
of any obligation the employer may incur under his
contract with the union . In particular , a modifica-
tion of practices established by a consistent pattern
of conduct may constitute a change in the terms
and conditions of employment whether or not it is
also a breach of contract . In the face of such estab-
lished practice , the contract is only relevant to the
extent that it may indicate the union 's waiver of its
right to bargain . [Citations omitted.]
In view of the above , it is evident that if it is conclud-
ed that the University unilaterally terminated the tuition
exemption program for the employees represented by
Local 32B-32J, without having first offered to bargain in
good faith, that such action must be construed as a uni-
lateral change in the employees' terms and conditions of
employment and a violation of Section 8(a)(1) and (5) of
the Act . Further, if it is concluded that this change was
motivated by a desire to retaliate against the employees
because of the fact that their representative successfully
sought to enforce its contract vis a vis the Shortman
Fund, it would follow that such action would also vio-
late Section 8(a)(3) of the Act.
In its defense the Respondent makes three contentions,
all which I find unpersuasive . First, it contends that the
University notified the Union of its intention to terminate
the tuition exemptions program and did, in fact , termi-
nate the program more than 6 months before the charge
was filed . Second, the Respondent argues that it did bar-
gain with the Union regarding the termination during the
series of meetings held in the summer of 1980 . Third, it
contends that the arbitration award regarding the tuition
exemption program is dispositive of the issues in this case
and should be deferred to under Spielberg Mfg. Co., 112
NLRB 1080 ( 1955), and related cases.
Concerning the Employer's contention that bargaining
did take place , I do not believe that the facts can support
this assertion . Although it is true that either during the
summer of 1980 or on September 4, 1980, the Respond-
ent's representative, Rimicci , did state that the University
" Although the contract contains a "zipper" clause, this would not
constitute a waiver See GTE Automatic Electric, 261 NLRB 1491, 1492
(1982)
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would terminate the tuition exemption program, that
statement was made in the context of a series of meetings
concerning the health benefits, was specifically in re-
sponse to the Union's assertion that Columbia was not
abiding by its contractual obligation to make payment to
the Shortman Fund, and was conditioned on the Union
pursuing and winning an arbitration case involving the
Shortman Fund. As such, the statement could reasonably
be viewed as posturing in the context of trying to settle a
contract grievance. At most, I would construe Rimicci's
statement as constituting no more than an argument in
defense of the University's failure to pay to the Short-
man Fund in that he was making the unfounded assertion
that the Union had "tacitly" agreed to waive such pay-
ments in lieu of retaining the tuition exemption program.
At worst, I would construe the statement as constituting
a threat to retaliate if the Union insisted on going to arbi-
tration to enforce the contractual obligation to make
contributions to the Shortman Fund. In neither instance
do I view Rimicci 's statements as constituting a genuine
or good-faith offer to bargain about whether or not the
University should retain the tuition exemption program
as a benefit for the employees represented by the Union.
I also reject the Employer's contention that the arbi-
trator's opinion and award is dispositive of this case. As
noted above, it is my opinion that the arbitrator was only
called upon to decide and only did decide whether the
elimination of the tuition exemption program was a
breach of contract. Although it is true that the transac-
tion before the arbitrator was the same as before me, the
legal questions involved are quite different. Thus, unlike
the arbitrator who was called upon to decide whether
the change constituted a breach of contract, it is my
function to decide whether the change was a violation of
the statutory obligation to bargain. As such, the breach
of contract issue is essentially irrelevant to the issue
before me. That is, I am not called on to decide whether
the elimination of the tuition exemption program, a non-
contractual benefit, constituted a breach of the collec-
tive-bargaining agreement , but rather whether the Em-
ployer may unilaterally discontinue this longstanding
benefit without first offering, in good faith, to bargain
with the Union and whether the change was discrimina-
torily motivated. As it appears that the statutory issues,
as opposed to the contractual issues , were not decided by
the arbitrator, it is concluded that deferral would not be
appropriate.5
With respect to the deferral issue , I am not persuaded
by the cases cited by Respondent. As I read the deci-
sions in Bay Shipbuilding, 251 NLRB 809 (1980), and
Boise Cascade Corp., 263 NLRB 480 (1981), the contrac-
tual issues before the arbitrators and the statutory issues
were so intertwined that even if not explicitly stated, the
arbitrators' factual conclusions would nevertheless have
been consonant with Board precedent. That is, in each
case, in which it was alleged that the companies made
unilateral changes, one of the issues before the respective
° See Suburban Motor Freight, 247 NLRB 146 (1980) See also NLRB
v Designcraft Jewel Industries, 675 F.2d 493 (2d Cir 1982), Ad Art Inc v
NLRB, 645 F 2d 699, 674-677 (9th Cir 1981), Radio Television Technical
School v NLRB, 488 F 2d 457, 461 (3d Cir 1973)
arbitrators was whether by contract or agreement, the
unions had waived their rights to bargain about the
changes . In such cases, the issue of waiver would be
common to the arbitration and unfair labor practice pro-
ceedings and would encompass both a matter of contract
interpretation as well as an issue which would be disposi-
tive of the 8(a)(5) allegation . For if a contractual waiver
(ordinarily found in the contract itself) is found, an em-
ployer would not violate Section 8(a)(5) even if it makes
a unilateral change without bargaining . This is, however,
unlike the present case where the Respondent does not
contend, and the record cannot support, any assertion
that the Union had "waived" its right to bargain about
the termination of the tuition exemption program.
Indeed, it does not appear that the Employer made any
waiver argument before the arbitrator and no such find-
ing was made by the arbitrator.
I also view Distillery Workers Local 2 v. NLRB, 664
F.2d 318 (2d Cir. 1981), as being distinguishable. In that
case the court deferred to an arbitrator's award even
though the arbitrator did not, in so many words, consid-
er the statutory issue whether the employer had failed to
bargain before making a unilateral change. In that case,
however, the arbitrator reached the conclusion that the
company, in light of its past practices, did not make a
change in its employees' working conditions. As there
must be a change before a bargaining obligation will
arise, the court reasoned that the arbitrator's factual find-
ings in this regard were controlling because that fact
would also be the critical fact before the Board. As there
is no dispute in the present case that a change occurred
when Columbia terminated the tuition exemption pro-
gram vis-a-vis the employees herein, I do not think that
Distillery Workers Local 2 is controlling.
It also is my opinion that Atlantic Steel Co., 245 NLRB
814 (1979), would entail much the same analysis. In that
case it was alleged by the General Counsel that an em-
ployee had been discharged because of his participation
in a grievance discussion. The employer defended on the
grounds that the employee had made obscene and dispar-
aging remarks to his supervisor on the production floor
during that discussion . An arbitrator had held that the
employee had, without provocation, made the obscene
and disparaging remarks as contended by the employer.
In deferring to the arbitrator's award, the Board con-
cluded that the arbitrator had considered all the evidence
relevant to the unfair labor practice and that based on his
factfindings, the award was consonant with Board prece-
dent.6 Thus, in Atlantic Steel the Board held that despite
the failure of the arbitrator to explicitly state that he was
deciding the unfair labor practice issue , the Board, nev-
ertheless, deferred where the arbitrator's findings of fact
would be dispositive of the unfair labor practice issue,
when considered in light of the applicable Board prece-
dent.
In the present case, it is not the arbitrator's factual
findings which are disputed, but rather the appropriate
legal standard to be applied to what are, basically,
e That is, given the same set of facts, the Board would have reached
the same conclusion in the absence of an arbitration
COLUMBIA UNIVERSITY
agreed-upon facts. In this respect, the present case does
not present a situation where the parties disagree with
the arbitrator's findings of fact. Rather, it is evident to
me that the arbitrator's findings of fact are essentially
correct, but rather that his conclusions about the con-
tractual issue are simply not material to the unfair labor
practice issues. As it is clear to me that the unfair labor
practice issues were not before the arbitrator and as I am
equally persuaded that he did not make any factual find-
ings (such as the existence of a waiver) which would
have constituted a valid defense to the 8(a)(5) and (3) al-
legations , I conclude that deferral is not appropriate.
Finally, in its brief the Respondent argues that the
complaint should be barred by virtue of the statute of
limitations set forth in Section 10(b) of the Act. It con-
tends that the 10(b) period should run alternatively from
September 1980 or, at the very latest , from March 16,
1981. Concerning the September 1980 date, the Respond-
ent contends that at that time, Rimicci announced to the
Union that the University would terminate the tuition ex-
emption program if the Union succeeded in winning an
arbitration concerning the Shortman Fund. It also con-
tends that during the period the arbitration hearings
were occurring (re: the Shortman Fund), the Respondent
again notified the Union that if the Union won the arbi-
tration, the University would terminate the tuition ex-
emption program. Thus, the Respondent argues that
when the arbitration decision issued on March 16, 1981,
the Union "knew or should have known that the Colum-
bia would no longer grant benefits under its Tuition Ex-
emption Program to the service employees."
As noted above, I have viewed the statements by Ri-
micci either as posturing or as a threat to retaliate if the
Union successfully arbitrated the Shortman Fund dis-
pute. In either case, I do not believe that these state-
ments amounted to an effective or good-faith notification
by the Employer of an intention to terminate the tuition
exemption program. In context, I cannot conclude that
such remarks were construed, or reasonably could have
been construed, as a serious announcement of the Em-
ployer's intention to terminate the program. In fact, Ri-
micci's remarks were conditional in nature and it was not
until Mejias' application was turned down in August
1981 that there was an injured party or that there was, in
my opinion, a reasonable basis on the Union's part, for
7 The Respondent in its brief does not contend that the 10(b) period
would run from September 1980, based on the testimony that Rimicci
orally told Company Managers Golden and Grattan that he was terminat-
ing the program for the service employees In this respect this alleged
decision was not communicated to either the Union or to the employees
it represents and no employee suffered any detriment until a year later
Thus, even assuming that such decision was made by Rimicci in Septem-
ber 1980, there was no way for either the Union or the employees to
know of that decision and therefore no charge could have been filed at
that time See, e g, Allied Products Corp, 230 NLRB 858 (1977), South-
eastern Michigan Gas Co, 198 NLRB 1221 (1972) Cf Drukker Communi-
cations, 258 NLRB 734 (1981)
137
believing that Columbia had, in fact, terminated the tui-
tion exemption program for the employees represented
by Local 32B-32J. Thus, although Rimicci, on a couple
of occasions, made statements about what the University
might do if the Union won the Shortman Fund arbitra-
tion, it never did notify the Union until September 1981
that it had, in fact, made the decision or had implement-
ed it.
In the circumstances of this case, it is my conclusion
that the 10(b) period did not commence until either
August 1981 when Mejias' application was denied or
until September 1981 when the Union was formally noti-
fied that the change had occurred. L. C Cassidy & Sons,
185 NLRB 920, 926 (1970).
CONCLUSIONS OF LAW
1. The Respondent, the Trustees of Columbia Univer-
sity in the City of New York, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Union, Local 32B-32J, Service Employees
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The Union has been and continues to be the exclu-
sive collective-bargaining representative, within the
meaning of Section 9(a) of the Act, of certain of Re-
spondent's service and maintenance employees in an ap-
propriate unit.
4. By unilaterally withdrawing a longstanding benefit
(the Tuition Exemption Program), without having first
bargained in good faith with the Union, the Respondent
has violated Section 8(a)(1) and (5) of the Act.
5. By unilaterally withdrawing the benefit in retaliation
of the Union's successful attempt to enforce, through ar-
bitration, certain provisions of the collective-bargaining
agreement, the Respondent has violated Section 8(a)(1)
and (3) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I recommended that Respond-
ent cease and desist and take certain affirmative action
designed to effectuate the policies of the Act.
In order to restore the status quo ante, it is recom-
mended that the Respondent reimburse any employees
represented by the Union who had applied for and were
denied the benefits of the tuition exemption program and
who, but for the unilateral change, would have been en-
titled to receive such benefits. Because this record does
not sufficiently establish who, it anyone, would have
been entitled to this benefit, that question will be left to
the compliance stage of this proceeding.
[Recommended Order omitted from publication.]