The Trustees Of Columbia University

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.]