September 18, 2019
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board. No.
Kanne, Hamilton, and Barrett, Circuit Judges.
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
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
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
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).
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).
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).
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. §
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.
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
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.
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.
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.
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
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.)
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 ...