Teachers College, Columbia University,

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Teachers College, Columbia University and Local 2110, United Auto Workers. Case 02–CA– 164870

May 31, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On December 30, 2016, Administrative Law Judge John T. Giannopoulos issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief.

The National Labor Relations 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 and to adopt the recommended Order.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Teachers College, Columbia University, New York, New York, its officers, agents, successors, and assigns, shall take the actions set forth in the Order.

Dated, Washington, D.C. May 31, 2017

______________________________________

Philip A. Miscimarra, Chairman

______________________________________

Mark Gaston Pearce, Member

______________________________________

Lauren McFerran, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

Susannah Z. Ringel, Esq., for the General Counsel.

Ceilidh B. Gao, Esq. (Levy Ratner, P.C.), for the Charging

Party.

Tara E. Daub, Esq., Alexander E. Gallin, Esq. (Nixon Peabody,

L.L.P.), for the Respondent.

DECISION

STATEMENT OF THE CASE

JOHN T. GIANNOPOULOS, Administrative Law Judge. This case was tried before me in New York, New York, on September 7, 2016, based upon a Complaint and Notice of Hearing issued by the National Labor Relations Board (Board) alleging that Teachers College, Columbia University (Respondent or Teachers College) violated Section 8(a)(1) and (5) of the National Labor Relations Act (Act) by failing to furnish relevant information to Local 2110, United Auto Workers (Union).¹

Based upon the entire record, including my observation of the demeanor of the witnesses,² and after considering the briefs filed by the General Counsel, the Union, and Respondent, I make the following Findings of Fact and Conclusions of Law.

I. JURISDICTION AND LABOR ORGANIZATION

Teachers College is a New York nonprofit educational institution with a campus located in New York City. Respondent derives annual revenues in excess of $1 million , and purchases supplies valued in excess of $50,000 directly from firms located outside the State of New York. Accordingly, I find Respondent is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, that this dispute affects commerce, and the Board has jurisdiction pursuant to Section 10(a) of the Act. Respondent admits, and I find, the Union is a labor organization within the meaning of Section 2(5) of the Act. (Tr. 9.)

II. FINDINGS OF FACT

Teachers College is a private nonprofit educational institution, and has been affiliated with Columbia University since 1898. Although they are separate legal entities, the College serves as Columbia’s graduate school of education, offering students graduate degrees in education. Strujan v. Teachers College Columbia University, 2010 WL 3466251, at *1 (S.D.N.Y. 2010). As of the 2015–2016 academic year, over 5,000 students were enrolled at Teachers College. The Union, or its predecessor, has represented a unit of Respondent’s secretarial and clerical employees since at least the 1990’s. (Tr. 18– 19, 139–142.)

Respondent and the Union are signatories to a collectivebargaining agreement (CBA) with a recognition clause that reads as follows:

The College recognizes Local 2110 as the exclusive bargaining agent for, and this Agreement shall apply to, all on cam

¹ Citations to the transcripts will be denoted by “Tr.” with the appropriate page number. Citations to the General Counsel’s Exhibits, Respondent’s Exhibits, Union Exhibits, and Joint Exhibits will be denoted by “GC Exh” “R. Exh.” “U.” and “Jt. Exh.” respectively.

² When necessary, credibility resolutions have been made based upon a review of the entire record in this proceeding. Witness demeanor was the primary consideration in making credibility resolutions. I also considered the inherent probability of the testimony and whether such testimony was in conflict with credited testimony or documentary evidence. Testimony contrary to my findings has been discredited.

365 NLRB No. 86

2

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

pus full-time and part-time³ . . . secretarial and clerical employees including clerks, account clerks, secretaries, receptionist-typists, clerk-typists, assistant supervisors in the Word Processing Center, correspondence clerks, postal clerks, library assistants, personnel assistants, duplicating equipment operators, electronic data processing machine operators, bookkeeping machine operators, bookkeeping machine operator supervisors, key-punch operators, key-punch operator supervisors, audiovisual technicians, student financial aid counselors, cashiers, and telephone operators . . . excluding parttimers who work less than twenty hours except as hereinafter provided, maintenance employees, professional employees, temporary employees as defined herein, guards, watchmen, confidential employees, supervisors as defined in the National Labor Relations Act and all other employees.

The CBA was negotiated in 2007 and expired in February 2012. It was subsequently extended in 2012 and again in 2015 via a written memorandum of agreement (MOU). The CBA is currently is set to expire in February 2018.⁴ (Jt. Exh. 1–3.)

In 2012, during a collective-bargaining session, the Union told Respondent it believed that some professional staff were being paid hourly, and therefore should be represented by the Union. On April 2, 2012, the Union filed a grievance, pursuant to the terms of the CBA, alleging Respondent was improperly excluding positions from the bargaining-unit. As part of the grievance, the Union made an information request asking for, in pertinent part: (1) a list of all nonunit part-time, casual, hourly, temporary, and internship positions at the College;⁵ and (2) job descriptions for each of these positions. After some discussions, including a request from Respondent that the Union clarify the information request, on September 7, 2012, Respondent informed the Union that they had not identified any issues regarding the improper transfer of unit work. Respondent also expressed its belief that the Union, through the information request, was seeking evidence to support filing NLRB charges, and that the College “had no obligation to provide information that is not available under Board procedures.” The Respondent asked the Union to “let [them] know” if the Union wanted to clarify the grievance or to discuss specific cases involving unit work being transferred outside the unit. (R. Exh. 12, 11; Jt. Exh. 6; Tr. 148–149.)

Despite their efforts, the parties were unable to resolve their dispute. On December 4, 2012, the College sent an email to the

³ The agreement defines a part-time employee as “one who is regularly scheduled to work twenty hours or more per week or who works an average of twenty hours a week or more who is not a student at Teachers College, Bernard College or Columbia University . . . [a] parttime employee who subsequently elects to take courses . . . shall remain a member of the bargaining unit.” (Jt. Exh. 1 p. 6.)

⁴ Both MOU’s contain minor changes to the CBA’s basic terms. No changes were made to the recognition clause.

⁵ As part of the list of employees, the Union asked for the specific “name, job title/classification, department, rate of pay, work schedule, actual number of hours worked per week (if different from work schedule), starting date and termination/end date (where applicable) from January 2010 to the present.” (R. Exh. 11.)

Union formally denying the grievance.⁶ On December 13, 2012, the Union provided the College notice of its intention to arbitrate. The parties exchanged correspondence, disagreeing as to whether the grievance was arbitrable. On June 13, 2014, the Union emailed the arbitrator, copying Respondent, stating that the parties had agreed to his appointment to arbitrate the matter.⁷ The arbitrator held a telephone conference asking the parties submit pre-hearing briefs. Respondent’s brief argued that the grievance was not subject to arbitration because: (1) the Union’s request was untimely; and (2) the grievance involved unit placement issues (i.e. the Union was seeking to include nonbargaining unit positions in the bargaining unit) which were not subject to arbitration. (R. Exh. 13, 15; Jt. Exh. 4, 5, 6.)

It appears that some time in October 2014, the arbitrator asked the parties to discuss settlement. Before doing so, on November 20, 2014, the Union informed the College that it needed the information responsive to its April 2012 information request. (R. Exh. 1–2; Tr. 84.)

The attempt at settlement stalled, and on January 21, 2015, the arbitrator issued his decision finding that the grievance was timely filed. The arbitrator also held that, while he did not have authority to order that specific positions be included in the bargaining unit, he did “have authority to determine whether nonbargaining unit employees are performing unit work, and/or whether the College has transferred unit work to nonunit employees, and to fashion an appropriate remedy.”⁸ Accordingly, the arbitrator ordered the grievance to proceed to hearing upon the request of either party. (Jt. Exh. 6.)

On February 20, 2015, the Union informed the College that it was renewing its information request. The Union stated that, in...