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University of Chicago v. National Labor Relations Board

United States Court of Appeals, Seventh Circuit

December 17, 2019

University of Chicago, Petitioner/Cross-Respondent,
v.
National Labor Relations Board, Respondent/Cross-Petitioner, and Local 743, International Brotherhood of Teamsters, Intervening Respondent.

          Argued September 18, 2019

          Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. No. 13-CA-217957

          Before Kanne, Hamilton, and Barrett, Circuit Judges.

          KANNE, CIRCUIT JUDGE

         When a group of employees wants to collectively bargain with their employer, but the employer believes the group is ineligible for collective bargaining under the National Labor Relations Act, the two parties may address the dispute in a hearing before the National Labor Relations Board. At the hearing, a party may present evidence only if that evidence would be enough to sustain the party's position. If the Board determines the party's proposed evidence would not sustain its position, then the Board must refuse to accept the evidence.

         Here, a group of students who worked part time for the University of Chicago Libraries wanted to collectively bargain with their university employer. The University believed the student group was ineligible for collective bargaining under the Act, and the University wanted to introduce evidence to support this argument at a hearing before the Board. The Board determined that the University's proposed evidence would not sustain the University's position that the students were ineligible for collective bargaining. So the Board did not admit the University's evidence. Challenging that decision, the University petitioned our court for judicial review. The Board cross-applied for enforcement of its order finding the University should have bargained with its student employees.

         We conclude that the Board's refusal to admit the University's evidence was not an abuse of discretion and did not violate the University's due process rights. We deny the University's petition and grant the Board's cross-application.

         I. Background

         The Act grants "employees" the right "to bargain collectively." 29 U.S.C. § 157. The Act also defines "employee" to include "any employee," subject to listed exceptions not relevant here. Id. § 152(3).

         But not just any group of covered employees may band together for collective bargaining. The Board has authority to determine the appropriate unit-that is, group of employees-who are eligible to collectively bargain. Id. § 159(b).

         An employee, group of employees, or someone acting on their behalf may file with the Board a petition seeking the group's representation in collective bargaining with their employer. If the employer disagrees with the employees' proposed representation and there is "reasonable cause to believe a question of representation ... exists," then the Board will hold "an appropriate hearing" before the employees elect a representative. Id. § 159(c).

         This pre-election hearing is not open season to present any arguments a party wishes to make. Instead, its purpose is to determine whether a "question of representation" exists. One qualifying "question of representation" is whether the petition "concern[s] a unit appropriate for the purpose of collective bargaining." 29 C.F.R. § 102.64(a). To help resolve that question, parties may, under certain circumstances, introduce evidence of "significant facts that support the party's contentions and are relevant to the existence of a question of representation." Id. § 102.66(a). But if the evidence a party wants to introduce "is insufficient to sustain the proponent's position, the evidence shall not be received." Id. § 102.66(c).

         In May 2017, the International Brotherhood of Teamsters Union Local No. 743 ("Local 743") filed a petition with the Board. Local 743 sought to represent-for collective bargaining purposes-a unit of part-time student employees of the University of Chicago Libraries.

         The University responded with a "statement of position." In it, the University contended that the proposed unit of student employees was not appropriate for collective bargaining. The University gave three reasons, only one of which remains relevant: the students are temporary employees who do not manifest an interest in their employment terms and conditions that is sufficient to warrant collective-bargaining representation.[1]

         In advancing this argument, the University acknowledged that it relied on prior adjudicative decisions that the Board ultimately overruled in 2016. See Trs. of Columbia Univ., 364 N.L.R.B. No. 90, 2016 WL 4437684 (Aug. 23, 2016). The University nonetheless argued that the Board should overrule its prevailing decision on the matter.

         Hoping to back its arguments with evidence, the University followed a procedure set out in 29 C.F.R. § 102.66(c) to submit an "offer of proof" -a description of the evidence the University would present to the Board to show that student employees are not entitled to collectively bargain. (Pet'r's App. at SA-51-59.) Specifically for its position that student employees may not collectively bargain because they are "temporary or casual" employees, the University stated that the tenure of part-time student employees is "inherently temporary"-because "student employment ends when students graduate or leave the University for other reasons." (Pet'r's App. at SA-57.) The University also described evidence showing that most students remained in their positions for less than one year and could hold those positions only as students.

         At a pre-election hearing on May 17, 2017, the Board's hearing officer explained that, "after reviewing the proposed evidence and testimony the [University] would put on to support its arguments and the offer of proof/' the Board would not take evidence because "the evidence proposed as well as the testimony all deal with established [Board] law." (Pet'r's App. at SA-64.) As a result, the University was not allowed to present its proposed evidence; nor was it allowed a full hearing on whether the part-time student library employees as a group are an inappropriate collective-bargaining unit.

         The Board's regional director echoed the hearing officer's assessment, concluding that "the evidence described is insufficient to sustain the [University's] contentions" and, "therefore, consistent with Section 102.66(c), I instructed the hearing officer to decline to accept evidence from the University related to its contention[s]." (Pet'r's App. at SA-2.) The regional director ordered an election for representation of the unit proposed by Local 743: "[a]ll part-time hourly-paid student employees of the [University of Chicago Libraries]," excluding all "temporary employees."[2]

         The University asked the Board to stay the election and review the regional director's decision. The Board denied this request, concluding that "the facts asserted in the [University's] offer of proof are insufficient to warrant a conclusion that the library clerks should be deemed ineligible as temporary or casual employees." (Pet'r's App. at SA-76 n.1.)

         Following this decision, the unit of student library employees elected Local 743 as their collective-bargaining representative. The University objected to the election on the ground that the University was denied a hearing on whether the students qualified as employees who could collectively bargain. The Board rejected ...


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