Teachers College v. National Labor Relations Board

          Argued April 2, 2018

          On 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.

          David 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 General Counsel.

          Before: Garland, Chief Judge, and Edwards and Silberman, Senior Circuit Judges.

          OPINION

          GARLAND, CHIEF JUDGE.

         Teachers 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 enforcement.

         I

         Article 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).

         In its 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." Id.

         The 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.

         The 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).

         Following 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).

         The 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).

         Second, 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) (J.A. 464).

         On 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).

         Three 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 ...