please cor good morning your honor my name is alex barber and i represent columbia college chicago and its appeal from the decision of the n l r b the colleague basically challenges two of the board's findings first its finding that the college refused to bargain by by failing to negotiate with the union over the a fax of reductions in found namely imposition of the union's part in any expenses mean berber you do not challenge them the findings about bad faith bargaining the retrogressive bargaining the retaliation against the union president you know the harassment of the union president to correct that is correct we challenge none of those fine so with respect to the effects bargaining issue  really like to focus on the issue concerning what the proper test should be or what analysis should be applied in deciding that issue because the board maturity in it decision acknowledge that its analysis the clear and unmistakable waiver test was contrary to the authority in this circuit namely the chicago tribune case that was decided almost twenty five years ago despite the fact that the board majority acknowledged that its decision was contrary to the law of this circuit they nonetheless disregarded the chicago tribune case and decided the case under the clear and unmistakable waiver standard the significance of that is that it really does make a difference in the sense that under the tests that was supplied by the labor board gets it's really necessary for an employer to prove that a specific issue is six explicitly addressed and covered by a collective bargaining agreement before the employer is excused from bargaining over that issue in this instance it really would have required the collective bargaining agreement to state the explicit terms that the college not only had the right to make the decision to change the course credit hours for this particular semester but that it also  the union did not have the right to engage in effect bargaining over that decision because everybody all the parties agreed before the labor board that the college had no obligation to bargain over the decision the only issue was whether or not it had a duty to notify and bargain with the union over the of facts before implementing its decision now because it applied the clear and unmistakable waiver test the labor board found there was no waiver and therefore the college had a duty to bargain but if the if the board had instead applied the contract coverage test which not only this court has endorsed in chicago tribune but is also the analysis that is used and applied by the district of columbia court of appeals the result would have been entirely different because under that test and that analysis if a collective bargaining agreement specifically moves usually a management rights clause addresses a particular subject matter the effect of that is that the parties are already negotiated over that issue and therefore the employer has no further obligation to bargain over the effects of that decision during the treatment of the agreement herbert can i ask you to step back a little bit and for background purposes here would you agree that a union ordinarily has a right to bargain about an employer's decision that affects hours wages and working conditions that is correct yes obviously parties can agree to take certain issues off the table as was done here but the general background assumption is that  the duty to bargain would also include the effects of the employer's decisions for an that's correct yes i was wondering if you could address the supreme court's language in the metropolitan edison case which the board has relied upon to argue in contractual no strike clause and the issue was whether or not the employer had a right to impose more severe discipline on union officers for failing to enforce the contractual no strike clause and in that case the the board did apply the clear and unmistakable waiver test and it was indorsed by the supreme court the reason though that case is distinguishable is that the contract the collective bargaining agreement in that case did not address or cover this issue at all it was silent with respect to the issue whether union officers had this higher duty therefore we think that it really has no weapon cation because i would actually agree that there may be circumstances for example when a contract is silent on a particular issue that the clear and unmistakable test can come into play you can but this isn't that case because here the collective bargaining agreement in the management rights clause which was also in combination with the wrap up or waiver clause clearly clearly unquestionably covered the subject matter of the college's right to control academic decisions including educational policies as well as decisions in the implementation of decisions to change or modify the courses that were offered to students therefore we think that the facts in this case are very very different for example than what occurred in metropolitan edison and we don't think that that case really applies in this specific  situation let me address also the the second issue but just briefly the question about the remedy there's no question but that the labor board does have broad discretion to impose remedies for violations of the act however the remedies imposed by the board cannot be punitive or they will be considered as an abuse of the board's discretion and we think that's what happened here because if you really take the effects of bargaining violation out of the mix of violations found by the board first of all we don't think that this case really rises to the level of flagrant violations you don't you don't think the caress meant that home of the union president and retaliation against her and the kind of applies and enforces the policies the judge found that the college had legit the even though he found violations he found that the college had a legitimate debate of all good faith bargaining well those were only there were actually four categories of offenses that the ford majority relied upon for this marketing expense remedy and there were requests for other extraordinary remedies as well in addition to bargaining expenses but they were rejected both by the administrative law judge and by the board majority itself the only extraordinary remedy that was the imposed was bargaining expenses and the let me let me put it this way you know our our court cannot resolve the circuit split over the difference between a clear and unmistakable waiver standard and the contract coverage standard here if we were to follow circuit precedent here and set aside and agree with you on the effects bargaining issue that obviously was part of the mix in the the remedy decision that's correct but it would seem to me that there was and tell me if i'm wrong that there's a pretty good argument to say that the board ought to be able to just take a fresh look at the remaining package and decide what appropriate remedies including some of those extraordinary remedies might still be appropriate or whether the mix is changed enough so that they're not but that that would need a fresh look from the board and other work to read man yes we just don't think that it's necessary to remain and if three example this court were to agree with the college and the effect bargaining issue then would we be saying in effect that it's an abuse of discretion for the board to impose such a remedy on the basis of extraordinary ruling well and well at the other aspect of it the other aspect of it is that when the board majority impose this remedy it imposed the remedy for a period of time actually some nine months in which the college had not even violated the act because if you look at the majorities decision and they imposed this remedy beginning in march of two thousand and eleven and it runs until june of two thousand and twelve when the board found specifically that the college resume bargaining in good faith and there was no violation after that but when they the board majority chose this march eleventh two thousand and eight that has no support whatsoever in the record for imposing that kind of remedy during that period of time in fact even the board majority acknowledged that until the fall of two thousand and eleven some six seven months later the parties were still negotiating in good faith and making progress progress toward reaching an agreement so when the board imposes this extraordinary remedy beginning in march two thousand and eleven frankly that has no support whatsoever in the record and we think that it falls then into the category of being a p the board clearly thought it was departing from seventh circuit precedent or do you were brief takes an entirely different tact which is astonishing well when from this court has never been overwritten explains that although there was a chicago tribune decision there are also other cases never over rules that apply clear in a mistake of a waiver and so i went back and read those cases and they have never been overruled and have been what happened in chicago tribune was you'll notice when you read that case that it actually starts out by noting that the board standards cleared a mistake will waiver and that with regard to on the job conduct that was clearly in  by the union in the contract with respect to off the job conduct that's where the court and the board disagreed and the court found it to be a simple matter of interpretation of the contract and completely disagreed with the board say that it's a simple mel matter of interpretation and when a contract fully defines the parties rights that's not clear the mistake will waiver fully defines this contract in this case it says absolutely a it says absolutely nothing about effects bargaining there is no mention of effect bargaining in this contract at all and the board has for years found that there is a separate statutory duty to bargain salary benefits and seniority the contract specifies minimum compensation for wages it does not specify matts income compensation and it does not say anything about making a decision and if that decision has an effect on wages you cannot bargain over it if you take a look at beverley california and the decision in that case there was a management right to change the schedule it was clear the board of the agree that the nursing home or hospital had the right to change the schedule but that schedule impacted nurses wages and you have to bargain over that reduction in wages and that's very similar to what happened here you have the right to make the changes of course credit hours but if it has an effect on wages as it did here that's in effect you have to bargain it but you know that's not the contract provides quite specifically what the consequence of a reduction in hours would be the contract minimum wages minimum compensation that's it does not spell out what happens if we reduce wages it sets out what word your yes i'm intrigued by the minimum that's what the contract calls it the contract specifically says this is minimum compensation i think we're talking about here is the fresno bee argument that all the effects were compelled by the collective bargaining agreement so first of all i need to remind you that this was not raised to the board by columbia college so this is a jurisdictional issue under section twenty of the act but the board went on to address this and say that because the contract did not compel all of the effects the contract specifically says minimal compensation and even under fresno bee you have to show that college would have to show not only that all the effects were compelled but that there was nothing no alternatives that could bargain about and can be a college made no showing about that and there are things they could bargain about it was only minimum compensations they could bargain about that they could bargain abouts i did put some things in my briefs that they could talk about they could grandfather people in so that they had the same credit hours for one semester so that people got used to the idea there were a lot of things they could talk about it remember that they did bargain about this in the past they've reduced the credit hours in the photo department a couple of years before and they had bargained about the effects of that and reached an agreement so it is might be but i can see where  i could take the board may still well have said there were things you could bargain about even if you can't bargain about wages you could have bargained about there were discussions in the record about contact hours that the actual time you spend in the classroom and sometimes that didn't go down but the credit hours went down so for those people you might have made some sort of arrangement there were things they could have discussed that might not have impacted on wages so even if it said you cannot pay more than th i think the board would say there were other things you could sit down and discuss but all we're saying is that they need to sit down with the union and discuss it that's the of the effect of the board's effect for anything really you need to talk about i think under contract coverage if you ask a question about what happens if we disagree with you and we go along with country coverage i'm not sure that there would be a different answer in this case and if you read in low the d c circuit decision on effect bargaining when so says that well it would be unusual for the court to find a difference between decision regarding an effect bargaining there could be bargaining history the parties own conduct to show that the effects were not covered by or contained in the contract and in low the union did not request effects bargain and the union never identified in the effects it wanted to discuss all it asked for was decisional bargain that's not the case here the union has consistently requested affects bargaining over these course our reductions and has a den of five things that want to discuss and in fact the parties in the past have discussed the effects of force trade our reductions so i don't think this is and located even if you did apply contract coverage or remember my argument is that you do not have to because i think this court the weight of the precedent shows that you apply clear and unmistakable waiver in your view could we rule in your favor without overruling at least a course in the chicago tribune i don't think you need to overrule chicago tribune at all what should we say about it in your view i think you can explain that the court found the board was completely wrong about its contract interpretation and that that contract did fully define the party's rights this contract is not fully defined the parties rights there is no mention of effect bargaining and the board has for years said there's a separate statutory duty to bargain over a fax and the supreme court has said that statutory rights must do you make if you make anything of the second circuit approach well then the second circuit is interesting and i'm not sure that it's actually that different i mean what they say is their first step is to look at the contract and if the contract clearly and unmistakably covers the issue and they used both language but they also say that they are not adopting the contract covered standard so what they want to see is i like the language  the earlier d c circuit decisions if the contract truly defines the parties rights then we go further but if the contract doesn't take care of everything then we ask whether it was waived in some other way and we look at bargain in hasn't addressed the second circuit's approach but if it does make a lot of sense you look at the contract first and if the language of the contract fully defiance of the board hasn't said anything about it so at this point i am well why would i have to be included in the contract such as the one we have here that would be so clear that we would  not we could confine it to the contract you know you list several things that could be bargained for with all of those have to be itemized as specifically way no i mean it and i situation or hours and if they never want to bargain over the facts about anything then they could try to get the union to agree to waive the facts for getting that certainly not unlawful but that would they have include the language they were waving of thanks i actually used that language that's what they were doing or it would would would seek to say well for the board to find that there was an effect bargaining waiver over every issue yes the board would want to see effects marketing waiver but in terms of we don't want to bargain over wages remember the board didn't address this so at this point i'm sure i'm on my own but the the minimum compensation language could come out there could be as a clause that says it with the zipper clause for example is not very specific it could say we will not bargain over wages and any form during the term of this contract they could do if they didn't want to bargain about wages specifically the places in the contract they could add language to their ways it could be done this issue doesn't come up very often there are very few cases where there's an effect bargaining decisional bargaining split and usually comes out when the boards interpret a management rights clause so i don't have a lot of examples to give you that just does not happen very often no i appreciate the that's what it was just looking for what successor contract bargaining so there was they reopened issues that were not in dispute they submitted progressive bargaining proposals and then their their conduct outside the bargaining room their conduct of the related to the union president and the refusal to provide information so the effects bargaining was one small part of that and i think the the board's the board's remedy could well stand even if you take the effects bargaining out remember the board's remedy goes back the parties bargain for six months and then after the union files charges in a different case they resubmit their march proposal and do away with all the language that had been tentatively agreed to was a tense of a group they called it not in dispute but all the agreements they had made in those six months were wiped away and the board found this to be regressive and retaliatory the board explains i think it's on page six of the decision order and if it no may be for the twenty one why it went back to march twenty one so it was not and explained it was never raced to the board so again this is a jurisdictional ten issue it should have been race of the board if they had a problem with the board's changing the the bargaining remedy date they never challenge the factual findings the board did not have or will fail james factual findings the board relied on this factual findings and made different legal and francis from the science and i think once you take those factual finding with was a management rights clause that gave the employer the right to promulgate reasonable rules of conduct the employer in that case unilaterally during the of the agreement implemented policies dealing with both on and off the job drug and alcohol use contract did not specifically address those issues there was nothing whatsoever in the collective bargaining agreement dealing with those issues but yet because as far as the court was concerned the court not the board that the contract in a broad sense covered and addressed whether or not the employer had the right to implement those policies therefore under the contract coverage analysis there was no violation where clearly the board said under the clear and unmistakable waiver yes there was a violation with respect to other cases that the board relies on first of but there's no real issue whether that's the proper test the way really we read the cases the only circuits that really address this are the d c circuit the seventh circuit the first factually the heart in plymouth court case and effects bargaining issue where the d c circuit really smacked the board and actually imposed litigation costs against the board for making frivolous arguments in their in their in their appeal to the d c court of appeals in this case the the board is taking i think a somewhat different tack because in hartland clemens court they were relying upon the nine acquiescence doctrine whereas here there were attempting to claim we think incorrectly that the board's decision in this case is consistent with law in this circuit and we think that is just flat wrong also with respect to the board's argument that the college has waived that's right to make certain arguments on appeal we just think that's incorrect first of all with respect to the question as to whether or not the collective bargaining agreement does in fact cover and address what the contract talks about effects but only in terms of minimum cancer so presumably there could be room in the board's view to negotiate for more for other mitigation efforts theoretical but ye but yet the contract clearly spells out how the part and faculty are paid and it's based upon the predator hour depending upon how many credit hours prevail they have previously taught there is a different scale but as far as how much a faculty member is paid for a particular course it it's clearly pro rated it's based upon three credit hours but for example if a course is reduced from three to two hours the agreement clearly spells out how much that faculty member is going to get paid is there room maybe you know because it says it's a minimum that theoretically the parties could negotiate for something different i suppose so but i think that's very unrealistic because the contract really does fell out  the bargaining expense remedy the board majority never really explains or spells out in this decision why they selected that day they said that was the date but they never explained why and when you read both the board's decision and the judge's decision that they found that the violations began actually in late in the fall of two thousand