Part-Time Faculty Ass'n At Columbia Coll. Chi. v. Columbia Coll. Chi.

• Decision Date: 15 June 2018
• Docket Number: No. 17-3492,17-3492
• Citation: 892 F.3d 860
• Parties: PART-TIME FACULTY ASSOCIATION AT COLUMBIA COLLEGE CHICAGO, Plaintiff-Appellant, v. COLUMBIA COLLEGE CHICAGO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

892 F.3d 860

PART-TIME FACULTY ASSOCIATION AT COLUMBIA COLLEGE CHICAGO, Plaintiff-Appellant,

v.COLUMBIA COLLEGE CHICAGO, Defendant-Appellee.

No. 17-3492

United States Court of Appeals, Seventh Circuit.

ARGUED MAY 31, 2018

DECIDED JUNE 15, 2018

Rehearing and Rehearing En Banc Denied July 18, 2018

Michael P. Persoon, Attorney, Despres, Schwartz & Geoghegan, Chicago, for Plaintiff–Appellant.

Jonathan R. Cavalier, Attorney, Joseph E. Tilson, Attorney, Alex V. Barbour, Attorney, Cozen O'Connor, Philadelphia, for Defendant–Appellee.

Samuel J. Cretcher, Attorney, National Labor Relations Board, Contempt Litigation & Compliance Branch, Washington, for Intervenor.

Before Flaum, Manion, and Hamilton, Circuit Judges.

Flaum, Circuit Judge.

This case involves a labor dispute between Columbia College Chicago ("CCC" or "the College") and one of its employee unions, the Part-Time Faculty Association at Columbia College Chicago ("PFAC"), over the representation of full-time staff members who also teach part-time. A Regional Director ("the Director") of the National Labor Relations Board ("NLRB" or "the Board") ruled that such employees were included in PFAC's bargaining unit for the purposes of their part-time faculty duties. An independent arbitrator disagreed. After PFAC filed a federal suit to confirm the arbitration, the district court gave precedence to the Director's decision and vacated the award. We affirm.

I. Background

A. Factual Background

CCC operates a private university in Chicago that focuses on the arts and media. It employs approximately 220 full-time faculty, 1,000 part-time faculty, and 700 staff (350 full-time and 350 part-time). PFAC represents part-time faculty for the purposes of collective bargaining. A separate union, the United Staff of Columbia College ("USCC"), represents both full- and part-time staff members.¹ This case involves a dispute over the collective bargaining representation of a unique hybrid category of approximately 50 to 75 employees who work as both full-time staff andpart-time faculty, referred to as "Full Time Staff Who Teach" ("FTST").

The record is divided as to whether, prior to 2015, it was informally understood that PFAC represented FTST in their capacity as part-time faculty. On one hand, at the time of PFAC's original certification in 1998, it sent a written invitation to all part-time faculty, including FTST, to become union members. Following PFAC's certification, CCC also applied the union's wage scale and other contractual benefits (such as tuition remission and sick and personal leave) to both exclusive part-time faculty and FTST. Additionally, PFAC's former president and lead negotiator for its first three collective bargaining agreements considered FTST as part of the bargaining unit. At the same time, the President of CCC wrote to a group of FTST in 2014 that "[t]he College has never recognized nor does it agree to voluntarily recognize [FTST] either as members of the PFAC bargaining unit or as an independent union." Moreover, CCC never placed any FTST on the "unit eligibility list" that it provided to PFAC each semester, and it did not accord FTST any seniority within the PFAC bargaining unit. Finally, FTST did not pay PFAC union dues.

The recognition clause in PFAC's collective bargaining agreement ("CBA") is equally equivocal. That clause states:

The Unit includes all part-time faculty members who have completed teaching at least (1) semester at Columbia College Chicago , excluding all other employees, full-time faculty, artists-in-residence, and Columbia College Chicago graduate students, part-time faculty members teaching only continuing education, music lessons to individual students or book and paper making classes, Columbia College Chicago full-time staff members , teachers employed by Erickson Institute, the YMCA or Alder [sic] Planetarium, and other individuals not appearing on the Columbia College Chicago payroll, managers and confidential employees, guards, and supervisors as defined in the [National Labor Relations Act].

(emphasis added). FTST are part-time faculty members who have generally taught at least one semester at the College, and thus arguably fall under the scope of the general inclusion provision. However, FTST also qualify as full-time staff members, which are expressly excluded from representation.

In February 2015, USCC petitioned the NLRB under § 9 of the National Labor Relations Act ("NLRA") to add FTST to its existing bargaining unit via a self-determination election. See 29 U.S.C. § 159. The petition was originally dismissed on the ground that FTST were already represented by PFAC. However, that dismissal was later revoked and the petition rein-stated so that evidence on the issue could be presented. The Director conducted a twelve-day evidentiary hearing, during which numerous CCC employees testified about terms and conditions of employment at the College.

PFAC intervened in the Board proceedings and claimed that it did not represent FTST. It argued that FTST did not share a "community of interest" with other part-time faculty and that their inclusion in the bargaining unit would "destabilize" the existing contract between PFAC and the College. It also asserted that including FTST "would create a minority union to compete with an already established majority union's representation of part-time faculty."

In August 2016, the Director issued a "Decision and Order" that found FTST were included in the PFAC bargaining unit in their capacity as part-time faculty. He ruled that FTST qualified as "dual function" employees because they held "two separate and independent jobs, one as full-time staff and the other as part-time faculty." He further decided that as part-time faculty, FTST were "already included in the PFAC unit ... and covered by the PFAC contract." He supported this determination by highlighting relevant witness testimony and pointing to the section of PFAC's recognition clause that states, "[t]he Unit includes all part time faculty members who have completed teaching at least one (1) semester at Columbia College Chicago." Although he acknowledged that the recognition clause also excludes "full-time staff members," he believed the limitation applied to FTST "only in regard to their capacity as full-time staff." Thus, in his view, FTST were included "within the plain language of the PFAC unit description." Because their faculty job classification "[was] already included in a unit covered by a contract," he concluded that contract bar principles prevented their further inclusion in USCC. Consequently, USCC's self-determination petition was dismissed.

PFAC requested review of the Director's decision by the NLRB. See 29 C.F.R. § 102.67(c) ("Upon the filing of a request ... the Board may review any action of a Regional Director."). Before the Board issued its final decision, however, CCC began to unilaterally assign retroactive seniority to FTST employees under the terms of the PFAC CBA. In response, PFAC filed a grievance against the College, arguing that CCC's actions violated the CBA because "[n]one of the so-called ‘FTST’ ... ha[d] paid the necessary union dues or agency fees to accrue or maintain seniority in the [PFAC] unit."² After CCC denied the grievance, PFAC sought arbitration.

In its briefs to the arbitrator, PFAC acknowledged that the Director included FTST in the PFAC bargaining unit, and claimed that it was "not using [the] arbitration as a collateral challenge to the [Director's] ruling." It further stated that it would "comply with [the decision] and fairly represent the FTST" as long as it remained in effect. Nevertheless, it maintained that the Director "was silent as to how to implement that decision," and "silent as to retroactivity." In the eyes of PFAC, the Director "claimed jurisdiction over a representation dispute, not a contract dispute over comparative, intraunit seniority." It argued that, by extension, "[n]othing in the [Director's] Decision mandate[d] that the Employer (or the Union) give FTST ‘back seniority.’ " It advocated that, since the Board had not yet issued a final decision, it was best "to allow the administrative process to play out" rather than allow "immediate, unilateral action from the Employer." It sought for the College "to cease and desist such unilateral assignments of seniority and to make whole any [PFAC] unit member who loses work as a result of the improper assignment of seniority/credit history." It argued that such a ruling would "maintain[ ] the status quo until the administrative process [before the Board was] ‘final.’ "

The arbitrator issued an award to PFAC on January 11, 2017. His decision, however, went beyond matters of mere seniority and addressed the underlying question of representation. He framed the "core issue presented" as one of "contract law," specifically, the proper interpretation of the recognition clause in PFAC's CBA. He emphasized that his "role and authority" was to "determine the parties' mutual intent lying behind the governing contract language." He concluded that the recognition clause was ambiguous as to the inclusion of FTST. He further determined that, prior to the Director's decision, the parties' "custom and practice" excluded FTST from the PFAC bargaining unit. As a result, he characterized FTST as "non-members of the bargaining unit." In his view, "because the parties did not mutually intend to include the FTST employees in the bargaining unit ... [CCC] violated [the CBA] when it treated those employees as if they were in the unit."

On February 14, 2017, the NLRB denied PFAC's request for review, thereby affirming the Director's dismissal of USCC's petition. See 29 C.F.R. § 102.67(g) ("Denial of a request for review shall constitute an affirmance of the regional director's action.").

B. Procedural Background

On January 23, 2017, PFAC filed suit under the Federal Arbitration Act ("FAA") to confirm the arbitration award and compel CCC to abide by its terms.³ See 9...