United States Court of Appeals, District of Columbia Circuit
April 2, 2018
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board.
Matthew J. Frankel argued the cause for petitioner. With him
on the briefs were Kenneth J. Nichols and Tara E. Daub.
Casserly, Attorney, National Labor Relations Board, argued
the cause for respondent. With him on the brief were Peter B.
Robb, General Counsel, John H. Ferguson, Associate General
Counsel, Linda Dreeben, Deputy Associate General.
Counsel, and Ruth E. Burdick, Deputy Assistant
Before: Garland, Chief Judge, and Edwards and Silberman,
Senior Circuit Judges.
GARLAND, CHIEF JUDGE.
College, an educational institution affiliated with Columbia
University, petitions for review of a decision of the
National Labor Relations Board. That decision affirmed an
administrative law judge's conclusion that the College
violated the National Labor Relations Act by refusing to
provide information requested by a union representing the
College's secretarial and clerical employees. The College
contends that the union failed to demonstrate the relevance
of the requested information. As we explain below, however,
substantial evidence supports the Board's finding that
the information was relevant and that the College was
obligated to provide it. We therefore deny the petition for
review and grant the Board's cross-application for
I of the collective bargaining agreement (CBA) between the
College and Local 2110, United Auto Workers, recognizes the
union as "the exclusive bargaining agent for . . . all
on campus full-time and part-time . . . secretarial and
clerical employees." CBA art. I, ¶ 1 (J.A. 157).
Since 2012, the union has suspected the College of violating
the CBA by transferring work reserved to the bargaining unit
to non-unit College employees. See Email from
Jennifer Myers, Local 2110, to Randy Glazer, Teachers College
(June 13, 2012) (J.A. 397); Teachers College, 365
N.L.R.B. No. 86, at 2 (May 31, 2017) (ALJ Opinion) (J.A.
463). After communicating these suspicions during contract
negotiations in the spring of 2012, the union filed a formal
grievance with the College. See Email from Myers to
Glazer (Apr. 2, 2012) (J.A. 399); ALJ Opinion, 365 N.L.R.B.
No. 86, at 2 (J.A. 463).
grievance, the union requested a list of "all non-unit
part-time, casual, hourly, temporary and internship"
employees and, for each employee, his or her "name, job
title/classification, department, rate of pay, work schedule,
actual number of hours worked per week," and starting
and ending dates. See Email from Myers to Glazer
(Apr. 2, 2012) (J.A. 399). After a few weeks of
back-and-forth, the College advised the union that it was
"in the process of gathering items and w[ould] respond
to [the union's] requests when that process [wa]s
completed." Opinion & Award, Local 2110, UAW v.
Teachers College, at 3 (Mar. 25, 2015) (March 2015
Arbitrator Opinion) (J.A. 188). But the College later changed
course, saying it believed the union was requesting this
information only "to support a charge of unlawful
conduct." Email from Glazer to Myers (Sept. 7, 2012)
(J.A. 400). As such, the College asserted that it "ha[d]
no obligation to provide [the requested] information."
College acknowledged that, "if [the union] believe[s]
that particular work has been improperly transferred out of
the unit to a non-unit employee in violation of the CBA, this
could be subject to the grievance and arbitration
procedure." Id. And it further acknowledged
that, "if a unit position is formally assigned a
significant responsibility . . ., that position should
normally maintain that responsibility unless there is good
cause for it to not be the case." Email from Glazer to
Myers, at 2 (Dec. 4, 2012) (J.A. 403). Claiming that the CBA
permitted the shared work responsibilities about which the
union complained, however, the College denied the grievance
in December 2012. Id.
union took the matter to arbitration. In January 2015, the
arbitrator concluded that the union's grievance was
arbitrable under the CBA, and that he "ha[d] the
authority to determine whether non-bargaining unit employees
are performing unit work, and/or whether the College has
transferred unit work to non-unit employees, and to fashion
an appropriate remedy." Opinion & Award, Local
2110, UAW v. Teachers College, at 12 (Jan. 21, 2015)
(January 2015 Arbitrator Opinion) (J.A. 185). The arbitrator
ordered the parties to agree on what information the College
would provide the union to facilitate further proceedings.
March 2015 Arbitrator Opinion, at 5 (J.A. 189).
the arbitrator's order, the union's counsel sent the
College's counsel a more targeted request for information
regarding non-unit positions it suspected were performing
unit work. See Letter from Alek Felstiner, Local
2110, to Tara Daub, Teachers College, at 1 (Apr. 13, 2015)
(J.A. 194). The College again refused to provide any
information, saying that it would not do so unless the union
identified for each position "(i) the unit work
allegedly transferred to such employees; (ii) the basis for
the Union's belief that unit work has been transferred to
such employees; and (iii) the alleged connection between the
unit work and the information requested." Letter from
Daub to Felstiner, at 4 (Apr. 17, 2015) (J.A. 201).
union then made two further efforts to address those topics.
First, in response to the College's request that the
arbitrator dismiss the grievance, the union wrote a letter
explaining at length why it believed the information
requested was relevant to determining whether the College had
impermissibly transferred work outside the unit. See
Letter from Felstiner to Richard Adelman, Arbitrator, at 3-5
(Sept. 10, 2015) (J.A. 337-39).
after the arbitrator rejected the College's request to
dismiss the grievance, see Opinion & Award,
Local 2110, UAW v. Teachers College, at 5 (Sept. 28,
2015) (September 2015 Arbitrator Opinion) (J.A. 350), the
union updated its request yet again and in more detail. As
the administrative law judge (ALJ) summarized:
[T]he Union had its members canvass the College, and review
documentary and other evidence in their possession regarding
what positions were performing unit work. Along with the
Union's attorney, they compiled a list of nonunit
positions that, in the Union's belief, performed unit
work, going building by building, department by department,
and floor by floor. The Union's attorney gathered the
information they knew about each position, including the
title, department, and history of the position, and created a
chart of 34 nonunit positions. Along with a list of the
position titles, the chart included the department for each
position, and a short "comments" section setting
forth the basis for the Union's belief and/or a
description of the specific position in question.
ALJ Opinion, 365 N.L.R.B. No. 86, at 3 (citation omitted)
October 22, 2015, the union emailed this chart to the
College, asking the College to provide the information
related to the listed positions. The email stated that the
union had developed the chart by using job postings,
information about assignment changes from unit employees, and
unit employees' observations of the job functions
non-unit employees were performing. See id. The
College once again accused the union of seeking the
information for improper purposes and refused to budge unless
the union further identified the unit work at issue.
See Letter from Daub to Felstiner, at 4-5 (Oct. 28,
2015) (J.A. 366-67).
weeks later, the union filed an unfair labor practice charge
with the National Labor Relations Board (NLRB). After a
hearing, an ALJ concluded that the College violated section
8(a)(1) and (5) of the National Labor Relations Act (NLRA),
29 U.S.C. § 158(a)(1), (5), when it refused to provide
the union with the ...