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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
REGION 2
In the Matter Of:
NEW YORK UNIVERSITY,
Respondent, Case No. 02-CA-120698
-and- Oral Argument Requested
UNION OF CLERICAL, ADMINISTRATIVEand TECHNICAL STAFF (UCATS) AT NYU,LOCAL 3882, NYSUT, AFT, AFL-CIO,
Charging Party.
RESPONDENT NEW YORK UNIVERSITY’S BRIEF IN SUPPORT OF ITSEXCEPTIONS TO THE DECISION OF ADMINISTRATIVE LAW JUDGE LAUREN
ESPOSITO
Michael J. Volpe, Esq.Benjamin E. Stockman, Esq.VENABLE LLP1270 Avenue of the Americas, 24th FloorNew York, NY 10020(212) [email protected]@venable.com
Sandi F. Dubin, Esq.Associate General Counsel & Director of Labor RelationsNew York University70 Washington Square South, Rm 1166New York, NY 10012(212) [email protected]
Attorneys for Respondent New York University
i
TABLE OF CONTENTSPage
STATEMENT OF THE CASE AND MATERIAL FACTS.......................................................... 1
A. The Collective Bargaining Agreement Between Respondent and TheUnion .............................................................................................................................. 3
B. As Noted by the OOA, the New Job Description Simply AssignedAdditional Related Duties to ADRSS Employees’ Current Assignments ..................... 4
C. The Union’s Claimed Effects ......................................................................................... 8
D. The Judge’s Decision ..................................................................................................... 9
QUESTIONS PRESENTED......................................................................................................... 10
STANDARD OF REVIEW .......................................................................................................... 10
ARGUMENT................................................................................................................................ 10
I. The Judge’s Decision Finding an Effects Obligation is Contrary toBoard and Federal Law. ............................................................................................... 10
II. Any Effects of the Job Description Change were De Minimis and TheJudge’s Conclusion that Substantial Effects Existed is Not Supportedby the Record................................................................................................................ 17
A. The Judge’s Finding that the Job Description Change ProducedMaterial and Substantial Effects is Premised on Clear andPrejudicial Errors of Law...................................................................................... 18
B. The Judge’s Factual Findings that the Job Description ChangeProduced Material and Substantial Effects are Unsupported by theRecord. .................................................................................................................. 20
C. The Remaining “Effects” Cited by the Judge were Clearly DeMinimis and/or Unsupported by the Record. ........................................................ 27
III. The Numerous Factual and Legal Errors in the Judge’s DecisionWarrant Dismissal of the Complaint Under Board Law. ............................................. 31
IV. Procedural Exceptions .................................................................................................. 36
V. Conclusion.................................................................................................................... 42
ii
TABLE OF AUTHORITIES
Cases
Allison Corp., 330 N.L.R.B. 1363, 1365 (2000) .................................................................... 12, 13
Berkshire Nursing Home, LLC, 345 N.L.R.B. 220 (2005) .................................................... 17, 29
Bonnell/Tredegar Industries, Inc., 313 N.L.R.B. 789 (1994) ....................................................... 15
Columbia College Chicago, 360 N.L.R.B. No. 122 (2014).......................................................... 18
Dep't of Navy v. FLRA, 962 F.2d 48, 57 (D.C. Cir. 1992) .......................................................... 14
Enloe Medical Center v. N.L.R.B., 433 F.3d 834, 838-39 (D.C. Cir. 2005).............. 11, 12, 19, 20
Good Samaritan Hospital, 335 N.L.R.B. 901 (2001)........................................................ 11, 12, 13
Heartland Health Care Center, 359 N.L.R.B. No. 155 (2013)...................................................... 13
Jewel Bakery, Inc., 268 N.L.R.B. 1326 (1984) ...................................................................... 10, 31
Johnson-Bateman Co., 295 N.L.R.B. 180, 184 (1989)................................................................. 10
Kentucky Fried Chicken, 341 N.L.R.B. 69, 84 (2004)................................................................. 18
La Mousse, Inc., 259 NLRB 37, 49 (1981) .................................................................................. 19
Local Union No. 47, IBEW v. NLRB, 927 F.2d 635, 640 (D.C. Cir. 1991) ................................ 13
McClatchy Newspapers, Inc. (“Fresno Bee”), 339 N.L.R.B. 1214 (2003) ...................... 18, 19, 20
McClatchy Newspapers, Inc., 339 N.L.R.B. 1214 (2003)...................................................... 17, 18
N.L.R.B. v. U.S. Postal Service, 8 F.3d 832, 836 (D.C. Cir. 1993) ....................................... 13, 14
Southern Florida Hotel & Motel Ass'n., 245 N.L.R.B. 561, 567-569 n. 22(1979)........................................................................................................................................ 10
Standard Dry Wall Products, Inc., 91 N.L.R.B. 544 (1950)......................................................... 10
UMW Dist. 31 v. NLRB, 879 F.2d 939, 944 (D.C. Cir. 1989) .................................................... 13
1
Pursuant to Section 102.46 of the Rules and Regulations of the National Labor Relations
Board, Respondent respectfully files the following memorandum of points and authorities in
support of its exceptions to the April 21, 2015 Decision of Administrative Law Judge Lauren
Esposito (the “Judge”).1
STATEMENT OF THE CASE AND MATERIAL FACTS
After a full and complete hearing of the issues in this case, Respondent presented one
straight forward legal issue to the Judge in its Post-Hearing Brief:
Whether Respondent New York University (“Respondent”) had an effects bargainingobligation under the National Labor Relations Act (the “NLRA”) given the plain terms ofthe collective bargaining agreement between the parties?
The substantial weight of the evidence in the record supported the conclusion that
Respondent owed no such obligation. The Judge’s Decision concluding that Respondent did
owe such an obligation contained fatal errors of fact and law which warrant dismissal of the
Complaint. To grasp the fundamental nature of the Judge’s errors, a robust recitation of the facts
in the record is necessary. The facts of this case are as follows.
The Complaint in this matter charged Respondent New York University (“Respondent”)
with “failing and refusing to bargain collectively with the exclusive collective-bargaining
representative of its employees in violation of Section 8(a)(1) and (5) of the Act.” The
Complaint’s pertinent allegations against Respondent are sparse. They are: that Respondent
notified the Union of Clerical, Administrative & Technical Staff at NYU (the “Union”) that it
was implementing changes to the job duties of Grade 8 Clerical Employees who work in the
Access, Delivery and Resource Sharing department of University Libraries located in Bobst
1 References to the Judge’s Decision are identified by page and line numbers as “D.__, L.__.” References to thehearing transcript are identified by the official transcript page number and line numbers, as “Tr.__, L.__.”References to Respondent’s Exhibits from the hearing are cited as “R # __”, General Counsel’s Exhibits are cited as“GC # __”, Charging Party’s Exhibits are cited as “CP # __”.
2
Library (the “ADRSS employees”), including requiring those employees to train and perform
work in areas within the ADRSS department other than the area in which these employees were
previously exclusively assigned. (GC # 1, Complaint, ¶ 8(a)). Respondent implemented the job
duty changes in November 2013. (Id., ¶ 8(b)). Since December 2013, Respondent has refused to
bargain about the effects of the job duty changes. (GC # 1, Complaint, ¶ 8(c)).
The Office of Appeals (“OOA”) had rejected the Union’s contention that the unilateral
change to the job duties amounted to a violation of the NLRA. The OOA stated:
Insufficient evidence was presented to establish that the Employerunlawfully changed some of the employees’ job duties without bargaining withthe Union. In the circumstances of this case, the evidence established that byagreeing to the language in the Management Rights clause the Union waived itsright to bargain over changes to the employees’ job duties such that theemployees who performed work in one section of the Access Delivery andResource Sharing Services could additionally be required to perform work in asecond section of the Access Services. The Management Rights clause gives theEmployer the authority to assign and transfer employees, as well as the authorityto determine the methods, procedures and personnel necessary to conduct itsbusiness. It was concluded that the assignment of additional related dutiesfalls within the language of this clause.
Contrary to the contention in the appeal, the evidence failed to establishthat the Employer combined seven existing positions into a single position withshared job duties. Rather, it appears that the employees will continue performingtheir primary duties, as well as additional duties as required. Accordingly, furtherproceedings on the allegations not included in the complaint are unwarranted.
(R # 1).
The OOA established that the Union “waived its right to bargain over changes to the
employees’ job duties such that the employees who performed work in one section of the Access
Delivery and Resource Sharing Services could additionally be required to perform work in a
second section of the Access Services.” (R # 1) (emphasis added). This language is dispositive
of the claim in the Complaint that Respondent violated the NLRA by “requiring those employees
to train and perform work in areas within the ADRSS department other than the area in which
3
these employees were previously exclusively assigned.” Since the OOA has already established
that the Union waived its right to bargain over the changes to the job duties, the General Counsel
cannot meet its burden of proof to prove the violation pled in the Complaint.
A. The Collective Bargaining Agreement Between Respondent and The Union.
The most recent collective bargaining agreement between Respondent and the Union is
for the term November 1, 2011 through October 31, 2017 (the “CBA”). (GC # 2). It is
undisputed that the relevant portions of the CBA cover the bargaining unit of employees within
the job description that is at issue in this action. These bargaining unit employees are the Grade
8 Clerical Employees who work in the Access, Delivery and Resource Sharing department of
University Libraries located in Bobst Library (as noted above, the “ADRSS employees”).
The CBA contains a Management Rights Clause, which states:
The operation and management of Respondent and the supervision and directionof the employees are and shall continue to be solely and exclusively the functionsand prerogatives of Respondent. All of the rights, functions and prerogativesof management which are not expressly and specifically restricted ormodified by one or more explicit provisions of this Agreement are reservedand retained exclusively by Respondent and shall not be deemed orconstrued to have been modified, diminished or impaired by any pastpractice or course of conduct or otherwise than by express provision of thisAgreement. Without in any manner limiting or affecting the generality of theforegoing, the right and power to select and hire all employees, to suspend,discipline, demote or discharge them for cause, to promote them to supervisory orother positions, to assign, transfer, supervise and direct all working forces, tomaintain discipline and efficiency among them, to determine the facilities,methods, means, equipment, procedures and personnel required to conductactivities, to promulgate rules and regulations and to exercise the other customaryfunctions of Respondent for the carrying on of its business and operations, arerecognized as vested exclusively in Respondent.
(GC # 2 at p. 34) (emphasis added). The CBA also contains a provision that expressly reserves
to Respondent the exclusive right to change the job descriptions and duties of its employees. It
states:
4
A. Each employee will have a written job description. The job descriptionwill contain the principal duties of the job, the title of the employee’s immediatesupervisor[s], and the grade level. It will also contain the following statement:
This description is intended to illustrate the kinds of tasks and levels ofwork difficulty required of the position and does not necessarily include allthe related specific duties and related responsibilities of the position. Itdoes not limit the assignment of related duties not mentioned.
A job description may be changed to meet the operating requirements of theunit, or to reflect changes which have occurred, such as the elimination oraddition of specific duties.
(GC # 2 at p. 8) (emphasis added). Article 9 further expressly bars the Union and any employees
from filing grievances or seeking arbitrations to challenge the content or description of any job:
C. Neither the Union nor any employee may grieve or arbitrate with respectto the content or description of any job. Arbitrators may not rely on, utilize orconsider this provision for any purpose in cases arising under other provisions ofthis Agreement.
(GC # 2 at p. 8). The Office of Appeals upheld Respondent’s decisional power based on these
provisions. (R # 1).
B. As Noted by the OOA, the New Job Description Simply Assigned AdditionalRelated Duties to ADRSS Employees’ Current Assignments.
The ADRSS department is comprised of six units, each providing different services to
Bobst Library and its patrons. The units are: Reserves, Circulation, Stacks, Library Privileges,
Offsite Processing, and Resource Sharing and Delivery Services. Prior to July 2013, each of the
six units had a separate job description for Grade 8 clerical employees working within the unit,
i.e., Reserve Assistant, Circulation Assistant, Stacks Assistant, Library Privileges Assistant,
Interlibrary Loan Assistant, Global Delivery Services Assistant. (See GC # 3; GC # 6).
In 2011, the ADRSS department began a voluntary cross-training program for ADRSS
employees to split their work hours between two or more units. The purpose of this program was
to create more staffing flexibility among ADRSS employees and to provide employees with an
5
opportunity to expand their skill sets. (GC # 3). The program was met with largely positive
reviews from the staff, nearly half of whom participated on a voluntary basis. (Id.) In 2012, the
ADRSS department created a new “blended” position to incorporate the success of the voluntary
cross-training program into a permanent job description. (Id.) Two new hires, Morrell
McClurkin and Phoebe Walker, filled the blended positions, in August 2012 and January 2013
respectively, within the ADRSS department and worked fully in multiple units. (Id.; Tr.160,
L.12-15; Tr.301, L.4-8, Tr.302, L.19-22). The Union never filed a grievance or challenged the
creation of the blended positions in any way. (Tr.303, L.17-20).
As a result of the success of the voluntary cross-training program and the new blended
positions, and to address operational needs, Respondent decided to change the job description of
the ADRSS employees such that the ADRSS employees would be assigned to work a portion of
their day in a second unit within the ADRSS department. (See GC # 3).
The job description and duty changes implemented by Respondent for ADRSS
department employees did not commence until January 2014. (Tr.298, L.7-13; Tr.161, L.25-
Tr.162:1). Job description updates and changes are common. In its normal course of business,
Respondent regularly makes approximately 15-20 changes or updates to job descriptions within
its libraries workforce per year. (Tr.298, L.17-Tr.299, L.3). The ADRSS department
employees’ job description was changed due to operational need, including the need for
additional staffing flexibility, as well as to allow employees to grow their skill sets. (Tr.299,
L.19-Tr.300, L.4).
As a courtesy, on July 26, 2013, Assistant Vice-President of Employee Relations Barbara
Cardeli-Arroyo notified the Union by e-mail that Respondent had changed the job description
and that the new generalist job description would be implemented in September 2013. (GC # 3).
6
Ms. Cardeli-Arroyo’s e-mail included a detailed description of the business and operational
reasons behind the change, and a detailed account of the plan for implementation. (Id.) At the
time of Ms. Cardeli-Arroyo’s e-mail, the new job description had not yet been finalized and
implementation had not commenced. (Id.)
Union organizer Linda Wambaugh responded to Ms. Cardeli-Arroyo’s e-mail the same
day with a demand to bargain over the job description change. (Id.) The Union made an
information request on July 31, 2013, and follow up requests thereafter, which Respondent
responded to by producing more than 400 pages of documents on August 14 and August 26,
2013. (GC # 4, GC # 5, and GC # 6, GC # 7, GC # 8, GC # 9, and GC # 10). As a courtesy,
Respondent then met with the Union in September 2013 to further respond to the Union’s
questions regarding the new job description. (Tr.151, L.12-Tr.152, L.3).
On November 26, 2013, the Head of the ADRSS department, Kristina Rose, held a
meeting to introduce the ADRSS employees to the revised job description and duties. (Tr.159,
L.5-Tr.160, L.9; GC # 11). A slide presentation from the meeting covered secondary unit
assignments, training schedules, and emphasized employees would continue to work the same
days and hours, and maintain the same home departments they were currently working in, as
well as attendance policies, and performance evaluations. (Id.)
Training for the new job duties associated with the job description change commenced
for some ADRSS employees in December 2013 and others in January 2014. (Tr.298, L.7-13;
Tr.161, L.25-Tr.162, L.1; R # 5, R # 6, and R # 7). All ADRSS employees began work in their
new secondary units in January 2014. (Id.) Jasmin Smith, union shop steward for the ADRSS
employees, testified that after completing training with the supervisors, employees received on-
the-job training by shadowing co-workers as needed. (Tr.191, L.5-10; Tr.202, L.19-24). Any
7
shadowing duties performed by employees were the same duties the employees performed for
training new hires before the job description change. (Tr.192, L.13-23; Tr.310, L.11-25). As the
Office of Appeals determined, the Union waived its right to bargain over any additional duties
related to training, to the extent any existed.
The new ADRSS Assistant job description incorporated all of the same requirements and
duties that existed in each of the six old descriptions. (See GC # 10). The new job description
maintained the same educational and experience requirements as the old job descriptions.2
(Tr.305, L.24-Tr.306, L.3). The new job description did not alter the workloads of the six units,
as the employees continued to work the same number of hours a week on the same schedule as
they had before. (Tr.307, L.8-11, 18-20). The new job description did not change the ADRSS
employees’ schedules. (Tr.307, L.21-25; Tr.193, L.22-Tr.194, L.5). To the contrary, where
Respondent changed an ADRSS employees’ schedule, it was because the employee herself
requested the change, and Respondent accommodated the request. (Tr.193, L.22-Tr.194, L.5).
The new job description did not change the approval process for sick and leave time. (Tr.194,
L.6-14). The new job description was reviewed by Respondent’s compensation department,
which determined that the changes to the job description did not warrant a change in the
employees’ “Grade” and therefore there would be no change in compensation for the employees.
(Tr.199, L3-7; Tr.259, L.22-Tr.260, L.6; Tr.262, L.1-18). Compensation for Grade 8 employees
had already been negotiated in the parties’ CBA. (See GC # 2). The new job description did not
alter ADRSS employees’ benefits. (Tr.199, L.8-10).
2 There was evidence at the Hearing that the educational requirement section on the Stacks Assistant job descriptionwas blank, whereas the job descriptions for the other five units and the new ADRSS Assistant required a high schooldiploma. (Tr.321, L.2-12; GC # 5). The testimony was later clarified that no ADRSS employees were removed forfailure to satisfy the educational requirements of the new job description. (Tr.329, L.11-15).
8
To be clear, the employees continued to work the same shifts as they did before the
description change, earned the same salary, took the same number and duration of breaks during
the workday, kept the same benefits, were supervised by the same supervisors, and were
evaluated under the same criteria regardless of the description change. There have been no
layoffs as a result of the job description change and staffing levels have remained the same aside
from normal attrition unrelated to the change. (Tr.308, L.8-11, Tr.309, L.24-Tr.310, L.1). The
job description change did not affect seniority or bumping rights. (Tr.310, L.2-5). And as stated
above, no ADRSS employees were removed from their units for failing to meet the qualifications
requirements of the new job description. (Tr.329, L.11-15). The evidence on record is clear that
the ADRSS employees’ new job description merely assigned additional related duties, which the
Office of Appeals ruled Respondent had the right to assign.
C. The Union’s Claimed Effects.
Ms. Smith, union shop steward for the ADRSS employees, testified on behalf of the
Union regarding the purported effects of the job description change. She identified certain
differences between her home department, Circulation, and her secondary department, Stacks.
(Tr.162, L.1-Tr.163, L.21). Ms. Smith further testified about some issues that arose from other
ADRSS employees during implementation of the job change. One instance involved an
employee who had a medical condition that made it difficult for him to remain alert at the
Circulation desk, which affected his work there. (Tr.166, L.3-25). Two other employees
expressed concern to Ms. Smith that they were having difficulty processing their home
department work at the same rate they did prior to the job change because of the requirement that
they spend a portion of their week in another department. (Tr.168, L.21-25; Tr.171, L.4-14). To
9
the extent employees voiced issues related to adjusting to the new duties, the Office of Appeals
made clear that there was no obligation to bargain over such issues.
Significantly, Ms. Smith conceded that Respondent solicited feedback from employees
and adjusted training schedules and duties based on this feedback. (GC # 22, GC # 23, GC # 24,
GC # 26, and GC # 32). Respondent also addressed specific concerns raised by individual
employees when it was made aware of those concerns, including concerns that employees would
be negatively evaluated during the learning curve for their new departments. (Id.) No ADRSS
employees have received negative performance evaluations or discipline as a result of work in
their secondary units. (Tr.304, L.20—Tr.305, L.23). To the contrary, the record contains two
performance evaluations in which ADRSS employees from the Stacks unit indicated that the
changed job duties offered positive professional development opportunities. (See CP # 2), Self
Assessment (“I could benefit from improving my computer skills”); (R # 4), Self Assessment
(“If I had one wish outside of winning the lottery, it would be to continue to work in the offsite
department for staff sharing.”).
Ms. Smith further testified that although Respondent told employees that they would
spend approximately 8-14 hours per week in their secondary departments, in fact she only spent
5-7 hours per week in her secondary department. (Tr.198, L.1-7). She further testified that only
some ADRSS employees consistently work in secondary departments, whereas others do not
work in their assigned secondary department at all. (Tr.197, L.16-25).
D. The Judge’s Decision
The Judge issued her decision on April 21, 2015, in which she found that Respondent
violated Section 8(a)(5) and (1) of the NLRA by refusing to bargain with the Union over the
effects of its decision to change the job duties and descriptions of ADRSS employees. As
10
detailed below, the Judge’s decision was contrary to the substantial weight of the evidence in the
record and contrary to Board and federal law. For the following reasons, the Board should
dismiss the Complaint.
QUESTIONS PRESENTED
1. Did the Judge err in concluding that the Union did not waive its right to bargain over the
effects of Respondent’s job description change?
2. Did the Judge err in finding that the effects of the job description change were more than
de minimis?
3. Does the sum of the factual and legal errors in the Judge’s Decision warrant reversal of
the Judge’s Decision and Order and dismissal of the complaint under Board law?
STANDARD OF REVIEW
The Board reviews an administrative law judge’s decision de novo and is not bound by a
trial judge’s findings of fact. Standard Dry Wall Products, Inc., 91 N.L.R.B. 544 (1950). An
administrative law judge’s credibility findings based on witness demeanors are afforded
deference by the Board, however, the credibility of witnesses is not at issue in this matter. A
failure of a judge to explicitly review and meaningfully consider all of the relevant evidence in
the record warrants dismissal of the complaint. Jewel Bakery, Inc., 268 N.L.R.B. 1326 (1984).
ARGUMENT
I. The Judge’s Decision Finding an Effects Obligation is Contrary to Board andFederal Law.
The NLRB holds that a union may waive a statutory bargaining right by “clear and
unmistakable” language in a collective bargaining agreement. Johnson-Bateman Co., 295
N.L.R.B. 180, 184 (1989). A management rights clause alone can constitute a waiver of a
particular bargaining subject, although the Board typically requires more language specifically
11
referencing a subject area to find that a union has waived a right to bargain over the subject area.
Southern Florida Hotel & Motel Ass’n., 245 N.L.R.B. 561, 567-569 n. 22 (1979). Respondent’s
Post-Hearing Brief set forth its arguments based on the parties’ CBA that the Union waived its
effects bargaining rights concerning changes to job duties. The Judge completely ignored these
arguments. More importantly, the Judge completely ignored the contractual language of the
parties’ collective bargaining agreement in concluding that the Union had not clearly and
unmistakably waived its right to bargain over the effects of the changes to the job duties at issue
in this case. (D.7, L.24-26) (Exc. # 31, # 32).3 The Judge’s failure to take up any analysis of the
parties’ contract is clear and prejudicial error that requires dismissal of the Complaint for the
reasons that follow.
Moreover, the Judge’s finding that Respondent had an obligation to bargain over the
effects of the change to the job description, given the clear language in the CBA stating
otherwise, is contrary to federal law. Respondent strongly disputes the Judge’s finding that:
“nothing in either the management rights clause or the job description clause relinquishes the
Union’s right to bargain over the effects of any changes in job duties. Nor do those clauses
address training or evaluations, which in this case caused serious concerns on the part of
employees.” (D.7, L.34-37) (Exc. # 31, # 32). The Judge based this conclusion on Good
Samaritan Hospital, 335 N.L.R.B. 901 (2001), which she acknowledged is contrary to federal
law. (D.8, L.18-30). As detailed in Respondent’s Post-Hearing Brief, federal law holds: “it
would be rather unusual . . . to interpret a contract as granting an employer the unilateral right to
make a particular decision but as reserving a union’s right to bargain over the effects of that
decision.” Enloe Medical Center v. NLRB, 433 F.3d 834, 838-39 (D.C. Cir. 2005).
Here, the Judge acknowledged the law of Enloe but defied it, stating “the Board has since
3 All references to Respondent’s exceptions will be cited as (“Exc. # __”).
12
reaffirmed its commitment to the clear and unmistakable waiver standard in this regard,
following a long-standing policy of refusing to acquiesce in decisions of the Courts of Appeals
that are contrary to Board law.” (D.8, L.23-25) (Exc. # 41, # 56). However, the D.C. Circuit
Court of Appeals made clear in Enloe that federal law controls on the matter of contract
interpretation and mandates dismissal of the Complaint. The CBA’s language is unequivocal:
Respondent retains the exclusive right to change job duties without bargaining. Any right not
expressly restricted or modified by the agreement is reserved under Respondent’s unfettered
power to manage its workforce. Indeed, the Judge’s bare conclusion that the CBA treated
Respondent’s unilateral right to make job changes as distinct from the effects of those changes
flies in the face of the clear and specific language in the CBA and is simply an unreasonable
interpretation of this CBA. The Judge’s sheer disregard of Enloe, and failure to analyze the
specific contractual provisions at issue in this case is clear and prejudicial error, and contrary to
controlling federal law on the central issue in this case.
The Judge’s finding that Respondent had an effects bargaining obligation is also contrary
to Board law. Even assuming the legal framework of Good Samaritan is appropriate – which it
is not – the Judge erred by failing to analyze in any meaningful way the contractual language
controlling the parties’ bargaining relationship. (Exc. # 57). This is fatal error under Board law,
which holds that “the Board looks to the precise wording of the relevant contract provisions in
determining whether there has been a clear and unmistakable waiver.” Allison Corp., 330
N.L.R.B. 1363, 1365 (2000) (emphasis added). Here, the Judge provided no analysis whatsoever
of the language of the management rights and job description clauses in the parties’ contract and
summarily dismissed Respondent’s waiver arguments. See Decision, Section B, “Discussions
and Analysis.” Even under Board law, the Judge cannot simply conclude, without any analysis
13
of the contract language at all, that the Union retained its “effects” bargaining right. Yet this is
exactly what the Judge did here.
In all of the cases relied upon by the Judge in her decision, the Board closely examined
the express contractual language between the parties to determine whether waiver existed. See
Allison Corp., 330 N.L.R.B. 1363, 1365 (2000); Good Samaritan Hospital, 335 N.L.R.B. 901
(2001); Heartland Health Care Center, 359 N.L.R.B. No. 155 (2013). Here, Respondent made
detailed and persuasive arguments about the precise wording of the contract – including
arguments regarding the management rights clause’s coverage of training and evaluations – that
the Judge neither mentioned, reviewed, nor addressed in her opinion in any substantive way.
(See D.7, L.1-13; Respondent’s Brief, Section V(A)-(B)). To be clear, the Judge did dedicate a
single paragraph to the standard for waiver analysis, but failed to conduct an actual analysis of
the contract at issue. Plainly stated, the Judge abdicated her duty to examine the precise wording
of the parties’ contract on the single legal question posed by this case. The Judge’s failure to
analyze the precise language of the contract is clear and prejudicial error on the central issue in
this matter. See Allison Corp., 330 N.L.R.B. 1363, 1365 (2000).
Separate and apart from the waiver analysis, "[t]he union may exercise its right to bargain
about a particular subject by negotiating for a provision in a collective bargaining contract that
fixes the parties' rights and forecloses further mandatory bargaining as to that subject." Local
Union No. 47, IBEW v. NLRB, 927 F.2d 635, 640 (D.C. Cir. 1991) (citing UMW Dist. 31 v.
NLRB, 879 F.2d 939, 944 (D.C. Cir. 1989)). Courts have framed this analysis as whether an
issue is "covered by" a collective bargaining agreement. NLRB v. U.S. Postal Service, 8 F.3d
832, 836 (D.C. Cir. 1993). The distinction between waiver and “covered by” analyses is as
follows:
14
A waiver occurs when a union knowingly and voluntarily relinquishes its right tobargain about a matter; but where the matter is covered by the collectivebargaining agreement, the union has exercised its bargaining right and thequestion of waiver is irrelevant.
Dep't of Navy v. FLRA, 962 F.2d 48, 57 (D.C. Cir. 1992) (emphasis in original). “[W]hen
employer and union bargain about a subject and memorialize that bargain in a collective
bargaining agreement, they create a set of rules governing their future relations.” U.S. Postal
Service, 8 F.3d at 836. “[N]either the Board nor the courts may abrogate a lawful agreement
merely because one of the bargaining parties is unhappy with a term of the contract and would
prefer to negotiate a better arrangement.” Id.
Here, the CBA clearly covers all bargaining issues related to job description and duties
changes. The contract reserves all rights of Respondent “to assign, transfer, supervise and direct
all working forces, to maintain discipline and efficiency among them, to determine the facilities,
methods, means, equipment, procedures and personnel required to conduct activities, to
promulgate rules and regulations and to exercise the other customary functions of Respondent
for the carrying on of its business and operations . . . .” (GC # 2). Moreover, all management
rights and prerogatives which are not explicitly restricted in the CBA are reserved exclusively by
Respondent. (Id.) These provisions of the Management Rights clause of the CBA clearly and
unambiguously vest Respondent with exclusive control over the operational management of its
workforce.
The CBA covers the subject of job descriptions in Article 9, which expressly authorizes
Respondent to change job descriptions and duties without negotiating with the Union. Article 9
states: “A job description may be changed to meet the operating requirements of the unit, or to
reflect changes which have occurred, such as the elimination or addition of specific duties.” (GC
# 2). Article 9 further expressly bars the Union and any employees from filing grievances or
15
seeking arbitrations to challenge the content or description of any job. (Id.) This language
clearly demonstrates that the Union exercised its right to bargain over all aspects of job
description and duty changes and that Article 9 was the result of this bargaining. Had the Union
sought to carve out an exception for bargaining over the effects of a job description or duty
change, the language granting the Union this right would appear in Article 9. There is no
language in the CBA reserving to the Union the right to bargain over the effects of changes to
job duties. The Judge failed to address, analyze, or consider the “covered by” analysis set forth
by Respondent. (Exc. # 57). This is a clear and prejudicial error of law.
The Discussion and Analysis section of the Judge’s Decision contained other legal errors
as well. The Judge’s citation to Bonnell/Tredegar Industries, Inc., 313 N.L.R.B. 789 (1994) is
error because the case is inapplicable to the facts in the record. (Exc. # 39). The Judge cited
Bonnell/Tredegar Industries, Inc. for her conclusion that “[c]ontrary to Respondent’s contention,
the contract provision stating that the Union may not file a grievance or arbitrate with respect to
job descriptions does not establish a waiver of its right to bargain the effects of a job
description’s change.” (D.8, fn. 4). Bonnell/Tredegar Industries, Inc. involved a charge that an
employer unilaterally modified the terms of a collective bargaining agreement. Here, there is no
such charge. Moreover, Bonnell/Tredegar Industries, Inc. merely held that “the exclusion of
certain benefit provisions from the grievance-arbitration procedure is open to any number of
possible inferences.” Bonnell/Tredegar Industries, Inc., 313 N.L.R.B. at 791. This spectrum of
inferences includes the inference that the exclusion of a topic from the grievance process, such as
the job description clause here, combined with other strong evidence of waiver, which
Respondent set forth here, can establish that the Union waived its right to effects bargaining.
The Judge’s reliance on Bonnell/Tredegar Industries, Inc. to reject Respondent’s waiver
16
argument involved an overly-narrow legal interpretation and amounted to prejudicial legal error.
Just as she ignored the precise contractual language of the parties’ CBA, the Judge also
ignored the Office of Appeals’ analysis of the management rights clause in the CBA. (D.8, L.8-
16) (Exc. # 32, # 40, # 57); see also Respondent Brief section V(A). The Judge did so without
making any independent analysis of the contractual language. The OOA’s decision makes clear,
having analyzed the contractual language, that Respondent had no duty to bargain over the new
job duties or the methods and schedules for implementing them. To the extent ADRSS
employees voiced concerns about adjusting to the new duties, the OOA determined that
Respondent had no obligation to bargain over such concerns. (Respondent’s Brief, Section V(A)
at 15; R # 1). The Judge’s failure to follow the OOA’s decision amounts to reversible error.
(Exc. # 32, # 40, # 57).
Moreover, the Judge inaccurately concluded that “The Office of Appeals made clear that
the remainder of the complaint, which dealt with the effects of the changes in job duties, could
go forward.” (D.8, L.11-13) (Exc. # 40). The effects bargaining issue was not raised by the
Union’s appeal to the OOA, and the OOA did not opine on the effects portion of the unfair labor
practice charge. Simply put, the OOA did not consider or opine upon the viability of the
Charging Party’s claim that Respondent violated the NLRA by failing to bargain over the effects
of the job description change. Therefore, the Judge’s conclusion that the Office of Appeals
“made clear” that the Complaint contained a viable effects bargaining claim is not supported by
the record and is clear error. (See R # 1).
The Judge’s finding that the Union made no distinction between decisional and effects
bargaining is contradicted by the overwhelming evidence in the record. (Exc. # 42). The Judge
concluded that the Union’s “bargaining requests certainly encompassed both the decision and its
17
effects.” (D.8, L.36-37). The Judge primarily relied upon the hearing testimony of Linda
Wambaugh, who testified in hindsight that the Union demanded effects bargaining from the
beginning. (D.8, L.36-37, citing Tr.63-Tr.64). However, the e-mail exhibit underlying the
Judge’s finding clearly demonstrates that the Union sought bargaining over the job change, or
“reorganization” as they referred to it, irrespective of any effects. (See GC # 9). In addition, the
substantial weight of the evidence in the record showed that the Union demanded bargaining
over the change in job duties, not any effects. The Judge even made a note of this in the
Decision: “On November 27, 2013, the Union, by Wambaugh, formally demanded bargaining
over the change in job duties.” (D.5, L.12-13, citing GC # 9). Moreover, the Union’s charge in
this matter included a demand to bargain over the job change itself, further indication that the
Union demanded bargaining over the change to the job duties itself , not the effects.
The Judge made clear and prejudicial errors of law in finding that Respondent had an
obligation to bargain with the Union over the effects of the job description change. Accordingly,
the Judge’s decision should be reversed and the Complaint should be dismissed.
II. Any Effects of the Job Description Change were De Minimis and The Judge’sConclusion that Substantial Effects Existed is Not Supported by the Record.
As detailed in Respondent’s Post-Hearing Brief Section V(C), to establish a prima facie
violation of section 8(a)(5), the Board must show not only that the Union preserved the right to
bargain over the effects of the job description change, but also that the effects of Respondent’s
decision to change the job description were material, substantial, and significant. McClatchy
Newspapers, Inc., 339 N.L.R.B. 1214 (2003). Effects that are ministerial in nature or temporary
are not material and substantial. Id. The Board must present evidence that the purported effects
are more than just the change itself and persisted after the change was fully implemented. Id.
Employee preference is not relevant to the effects analysis. Berkshire Nursing Home, LLC, 345
18
N.L.R.B. 220 (2005). The mere fact that a change disadvantages employees is not sufficient to
satisfy the material and substantial standard. Id.
The Judge’s conclusion that the record contained material and substantial effects of the
job description change is clear error in light of the applicable law and the substantial weight of
the evidence in the record. (D.7, L.16-20) (Exc. # 33, # 34, # 36, # 39). In arriving at this
flawed conclusion, the Judge committed prejudicial errors of law and fact as discussed below.
A. The Judge’s Finding that the Job Description Change Produced Materialand Substantial Effects is Premised on Clear and Prejudicial Errors of Law.
In support of her erroneous conclusion that material effects existed, the Judge cited
Columbia College Chicago, 360 N.L.R.B. No. 122 (2014) for the proposition that “change
‘affecting just one employee’ can result in a violation of Section 8(a)(5).” While this may be a
true statement of law, the facts of Columbia College are inapposite to the facts here. (Exc. # 34).
The Columbia College decision found that employees who lost pay as a result of a change to
their schedules suffered a material and substantial effect. Here, it is undisputed that the ADRSS
employees did not suffer any reduction in compensation as a result of the job description change.
(Tr.199, L.3-7; Tr.259, L.22-Tr.260, L.6; Tr.262, L.1-18). The same factual distinction renders
inapplicable the other case the Judge cited for the same proposition. See Kentucky Fried
Chicken, 341 N.L.R.B. 69, 84 (2004) (reduction in overtime pay mandatory subject of collective
bargaining). (Exc. # 34). The Judge’s reliance on these cases in finding that a single comment
related to performance of a new job duty in an employee evaluation was a material and
substantial effect of the job description changes is clear and prejudicial error.
The Judge’s analysis of the holding of McClatchy Newspapers, Inc. (“Fresno Bee”), 339
N.L.R.B. 1214 (2003) also missed the mark. (D.7, L.20-22) (Exc. # 36). The Judge summarized
the holding of McClatchy Newspapers, Inc. (“Fresno Bee”), 339 N.L.R.B. 1214 (2003) as
19
“changes in shift times, extension of lunch periods, and increases in breaktimes of only 5
minutes ‘material and substantial’”. This is not what Fresno Bee held. The Board in Fresno Bee
sought to distinguish the facts before it from La Mousse, Inc., 259 N.L.R.B. 37, 49 (1981), which
held that a change in break times of five minutes was not material and substantial. La Mousse,
Inc. held: “[n]ot every unilateral change in work rules constitutes a breach of the bargaining
obligation.” In contrast, the Board in Fresno Bee held that effects of unilateral changes by an
employer are unlawful if they are permanent and systemic, as distinguished from the temporary
and brief effects (i.e., increases of only 5 minutes in break times) found in La Mousse, Inc. See
Fresno Bee, 339 N.L.R.B. 1214, 1215 (2003). Thus, the Judge’s citation to Fresno Bee for her
proposition that “changes in shift times, extension of lunch periods, and increases in breaktimes
of only 5 minutes ‘material and substantial’” is plainly wrong. This is a clear and prejudicial
error of law on the central issue in this matter. As explained below, the record here contained no
evidence of permanent or systematic material effects. (See also Respondent’s Post-Hearing
Brief, Section V(C)). Accordingly, the Judge’s application of the law of Fresno Bee is clearly
erroneous.
Specifically, the Judge’s conclusion that the new duties and associated responsibilities
were substantial effects is contrary to Fresno Bee. (D.9, L.7-10) (Exc. # 35, # 36, # 56). This is
precisely the problem that the D.C. Circuit Court of Appeals addressed in Enloe Medical Center
v. NLRB, 433 F.3d 834, 838-39 (D.C. Cir. 2005), when it held: “it would be unusual . . . to
interpret a contract as granting an employer the unilateral right to make a particular decision but
as reserving a union’s right to bargain over the effects of that decision.” Additional job duties,
training in the new duties, work in the new duties, supervision and performance evaluations of
the new duties were all inevitable consequences of a permissible managerial decision and not
20
effects subject to bargaining. Fresno Bee, 339 N.L.R.B. 1214 (2003).
Furthermore, Fresno Bee commands rejection of the Judge’s erroneous conclusion that
“[t]he fact that Respondent took the time and effort to address these issues [i.e., new duties,
training, supervisors, performance evaluations] confirms that the effects of the job changes were
sufficiently substantial and material to require bargaining.” (D.9, L.13-16) (Exc. # 36, # 56).
Not only is this conclusion contrary to the law of Fresno Bee and Enloe, but it begs the question
Respondent posed in its Post-Hearing Brief: if Respondent had the exclusive right under the
collective bargaining agreement to add new duties, implement the new duties, supervise the new
duties, and evaluate the new duties, how can the contract be read to require Respondent to
bargain over these managerial prerogatives? The answer is that it cannot be read this way.
B. The Judge’s Factual Findings that the Job Description Change ProducedMaterial and Substantial Effects are Unsupported by the Record.
Respondent provided ample undisputed evidence that the ADRSS employees continued
to work the same shifts as they did before the description change, earned the same salary, took
the same number and duration of breaks during the workday, kept the same benefits, were
supervised by the same supervisors, were evaluated under the same criteria regardless of the
description change, suffered no layoffs as a result of the job description change, remained at the
same staffing levels, maintained the same seniority or bumping rights, and received no negative
evaluations or discipline or any kind for failing to meet the requirements of the new job
description. (Respondent’s Brief IV(C) at 12, citing Tr.308, L.8-11, Tr.309, L.24-25-Tr.310,
L.1, Tr.310, L.2-5). The evidence on record is clear that the new job description merely assigned
additional related duties to the ADRSS employees, which the Office of Appeals found
Respondent had the unilateral right to assign and implement. The Judge’s failure to consider this
evidence is clear and prejudicial error and another example of the Judge’s failure to meaningfully
21
deliberate on all of the evidence in the record. (Exc. # 43, # 54).
The Judge erroneously concluded that the effects of the job description change were not
de minimis because the ADRSS employees “were required to receive training in new duties and
to work in unfamiliar jobs for at least part of their work week, under different supervisors.” The
Judge also found it significant that the employees were subject to performance evaluations that
included their new duties, and other unspecified “numerous adjustments” that Respondent
purportedly addressed. (D.9, L.7-16) (Exc. # 43). As explained in this brief, infra, there is no
support in the record for the finding that these were material or substantial effects.
There is no support in the record for the Judge’s conclusory statement that the job
description change amounted to a “new system”. (D.3, L.40) (Exc. # 3). This conclusion is not
supported by a citation to the record. Moreover, the record contains undisputed evidence that
“shadow” training was identical to the training process that predated the job description change
for on-boarding new employees. NYU Human Resources Director Enrique Yanez testified at the
hearing that the union members were all trained by “shadowing” when they were originally
hired. (Tr.310, L.11-25). This undisputed evidence in the record completely undermines the
Judge’s conclusion that the training in the new units amounted to an effect of the job description
change, as all of the ADRSS employees had already performed such training when hired. The
Judge ignored this undisputed evidence and failed to explain in any way her conclusion that the
job description change constituted a “new system” in the face of substantial contrary evidence.
(Tr.161, L.25-162, L.1; Tr.166, L.3-25; Tr.167, L.8-20; Tr.168, L.3-11; Tr.168, L.21-25; Tr.169,
L.5-Tr.170, L.3; Tr.171, L.4-14; Tr.191, L.2-7, 19-21; Tr.191, L.5-10; Tr.192, L.13-23; Tr.193,
L.22-Tr.194, L.5, 6-14; Tr.197, L.16-25; Tr.198, L.1-7; Tr.298, L.7-13; Tr.304, L.20-Tr.305,
L.23; Tr.305, L.24-Tr.306, L.3; Tr.307, L.8-11, 18-20; Tr.307, L.21-25; Tr.308, L.8-11; Tr.309,
22
L.24-Tr.310, L.1; Tr.310, L.2-5, 11-25; Tr.329, L.11-15; R # 4; CP # 2; GC # 22, GC # 23, GC #
24, GC # 26, and GC # 32).
The Judge erroneously cited GC # 34 as authority for her conclusion that “Documentary
evidence confirms that employees complained among themselves about training issues connected
with the job changes.” (D.6, L.11-13, citing GC # 34) (Exc. # 21). GC # 34 does not support
this finding. GC # 34 is an e-mail between supervisors that predates implementation of the job
changes. It is merely a communication between supervisors discussing an employee’s concerns
about his assigned secondary unit before he began work in the unit. The Judge’s conclusory
statement that this e-mail exchange “confirms that employees complained among themselves
about training issues” therefore is unsupported by the record.
The Judge’s finding that employees had to inform secondary supervisors of any schedule
changes cleared by primary supervisors is clearly de minimis. (D.6, L.19-21, citing GC # 28)
(Exc. # 23). GC # 28 is an e-mail sent before implementation of the job changes. Moreover, the
requirement that employees notify secondary supervisors of schedule changes merely required
employees to copy their secondary supervisor on any e-mails to their primary supervisor about
leaves. GC # 28. The Judge’s reliance on this de minimis effect is clear error.
There is no support in the record for the Judge’s conclusion that “it is clear that the
change in job duties had an impact on the evaluation process.” (D.6, L.36-37) (Exc. # 27). To
the contrary, the record is undisputed that the performance evaluation “process” was unaffected
by the job description change and the Judge’s conclusion to the contrary is clear and prejudicial
error. Respondent’s Human Resources Director Enrique Yanez testified at the hearing that the
employee performance evaluation process was the same for all library employees irrespective of
their job description, and that the job description changes of the ADRSS employees had no effect
23
on the process. (Tr.293, L.17-Tr.294, L.6; Tr.295, L.1-5). Union shop steward Jasmin Smith
confirmed this fact in her testimony. (Tr.177, L.5-Tr.178, L.12). There is further undisputed
evidence in the record that no negative performance evaluations resulted from the job description
change. (See R. # 4; Tr.304, L.20-25-Tr.305, L.19-22).
In another example of flawed logic, the Judge found that Respondent’s efforts to address
employee concerns during implementation amounted to a material effect of the job description
change. The Judge cited this evidence for the misguided conclusion that Respondent’s efforts at
a smooth transition constituted an acknowledgment of material effects of the job changes. (D.7,
L.45-51) (Exc. # 38). The Judge stated “Respondent concedes that it ‘solicited feedback from
employees and adjusted training schedules and duties based on this feedback.’ It also concedes
that it ‘addressed specific concerns raised by individual employees, when it was made aware of
those concerns, including concerns that employees would be negatively evaluated during the
learning curve for their new departments.’” (Id.) (emphasis added). The Judge concluded that
these general managerial practices “were bargainable issues that easily could-and should-have
included the employees’ bargaining representative . . . .” (D.8, L.2-4). The Judge essentially
faulted Respondent for its efforts to ensure a smooth transition for ADRSS employees into their
new job duties. By this logic, Respondent might have escaped the Judge’s scrutiny had it simply
done nothing to help the employees transition to their new duties. Soliciting feedback, adjusting
schedules, and addressing concerns do not constitute material effects. Other than these
managerial prerogatives, the Judge failed to identify any other effect that would fall outside of
normal managerial rights reserved to Respondent by the management rights clause. The Judge’s
finding of effects based on Respondent’s managerial prerogatives infringes on Respondent’s
collectively bargained-for rights.
24
The Judge made similar unfounded conclusions about communications from the ADRSS
Department Head to the ADRSS employees. The Judge found it significant that “on January 7,
2014, [department head Kristina] Rose e-mailed employees thanking them for their flexibility
with schedule adjustments and their feedback,” and quoted from the e-mail: “[y]our duties in
your current department will be adjusted to accommodate your working in another unit.” (D.6,
L.23-24, citing GC # 23) (Exc. # 25). The Judge’s citation to the Rose e-mail is incomplete and
misleading and cannot form the basis for a finding of substantial effects. The full statement of
Rose in GC # 23 affirmatively shows that employees were not expected to do “additional work”
on top of their current workloads, which is contrary to the proposition for which the Judge cited
the e-mail. In addition to the statement quoted by the Judge, Rose also stated: “I know there was
some concern that the new assignment is ‘in addition’ to work you already do. Your duties in
your current department will be adjusted to accommodate your working in another unit.” GC #
23. When viewed in its entirety, Rose’s full statement supports the opposite of the conclusion
the Judge drew from the partial statement. The complete statement establishes that the ADRSS
employees did not face increased workloads as a result of the job description changes. GC # 23.
The Judge made similar errors regarding other statements attributed to Ms. Rose. The
Judge stated that “Documentary evidence also illustrates other effects of the changes and the
Respondent’s unilateral efforts to ameliorate them”, and quoted Rose’s statement that “we may
need you to be a bit flexible.” (D.6, L.15-19, citing GC # 28) (Exc. # 21). GC # 28 is an e-mail
from Ms. Rose to staff sent before implementation of the job description changes, answering
hypothetical questions posed by employees. The full quote from the e-mail provides more
context than the excerpt cited by the Judge. The full quote states “[w]herever possible we will
create a work space for assigned staff so that desks do not need to be shared. If space is super
25
tight or resources (i.e., computers) are limited, we may need you to be a bit flexible.” (GC # 28)
(emphasis added). This is clearly a hypothetical answer to hypothetical concerns voiced by
employees. This is not evidence of any actual effect experienced by employees. The Judge’s
reliance on GC # 28 to support her baseless conclusion that such effects existed is clear and
prejudicial error.
The Judge appears to attribute statements to Ms. Rose not contained within the record.
The Judge found that “[i]n response to questions from employees, Rose indicated that the
employees were expected to perform at the same level as the recently hired blended employees . .
. .” (D.5, L.1-2) (Exc. # 12). Although attributing the statement to Rose, the Judge in fact cited
to the hearing testimony of Union shop steward Jasmin Smith, not any testimony of Ms. Rose.
(Tr.160-Tr.161). The Judge improperly attributed statements to Ms. Rose that were in fact
inadmissible hearsay statements by Union shop steward Jasmin Smith regarding alleged
statements of Ms. Rose. The Judge’s misattribution is clear error, as is her citation to
inadmissible hearsay to support her erroneous conclusion that the implementation of the job
description change created effects over which Respondent was required to bargain.
The Judge’s decision contains additional inaccuracies about the record evidence that
create an improperly skewed picture of the implementation process. The Judge stated: “in
December 2013, circulation department supervisors called for a meeting of employees to respond
to their questions about their new roles and assignments.” (D.6, L.21-23, citing “GC Exh. 20”)
(emphasis added). As an initial matter, the record does not contain a “GC Exh. 20”, rather there
is a GC # 20(a) and GC # 20(b). (Exc. # 24). The Judge’s citation to “GC Exh. 20” is further
evidence of her failure to scrutinize the record. GC # 20(a) contains two communications from
supervisors of the ADRSS employees establishing the supervisors’ availability for any
26
questions/concerns from ADRSS employees. Contrary to the Judge’s assertion, this was not a
“meeting of employees to respond to their questions”, but rather voluntary “open door” hours.
(Exc. # 24). The Judge cited this “meeting” as an example of documentary evidence illustrating
“effects” of the job changes, presumably because a “meeting” to discuss concerns implies the
presence of concerns. However, the actual content of the GC # 20(a) indicates that the
supervisors were merely making themselves available if employees had concerns they wanted to
discuss. See GC # 20(a). Aside from being good managerial practice in general, these voluntary
“open door” hours cannot form the basis for the Judge’s conclusion that employees had concerns
over actual effects of the job change. There is no evidence in GC #20(a) that any employees
attended these “open door” hours or voiced any serious concerns about actual material effects of
the job description change. Moreover, the correspondence in GC # 20(a) predates
implementation of the job description change.
In addition to exaggerating evidence of employee concerns, the Judge also ignored the
fact that ADRSS employees provided positive feedback about the job duties changes. (Exc. #
55). Respondent’s Post-Hearing Brief included examples of positive feedback from ADRSS
employees regarding the new job duties, including two positive performance evaluations in
which ADRSS employees reflected that the changed job duties offered an opportunity for
professional development. (Respondent’s Post-Hearing Brief IV(C) at 12, citing CP # 2 (“I
could benefit from improving my computer skills”), and R # 4 (“If I had one wish outside of
winning the lottery, it would be to continue to work in the offsite department for staff sharing.”)).
The Judge’s failure to consider the overall positive nature of these evaluations, and her erroneous
conclusion that ADRSS employees received “adverse comments” in performance evaluations is
clear and prejudicial error. (Exc. # 37, # 48, # 55).
27
C. The Remaining “Effects” Cited by the Judge were Clearly De Minimis and/orUnsupported by the Record.
In a glaring example of how thin the evidence of effects in the record actually is, the
Judge relied on a single employee’s medical difficulty to form the basis of her conclusion that
material effects existed. (Exc. # 19, # 29). The Judge erroneously concluded that the following
was an impact of the job change: “a stacks department employee who was not particularly
proficient at computer work also had a medical condition that made it difficult for him to remain
alert for the demands of the work in the circulation department.” (D.6, L.7-9). As noted in
Respondent’s Post-Hearing Brief, this employee’s trouble with computer work resulted from a
medical problem, and was not an “effect” of the job change. (Respondent’s Post-Hearing Brief,
Section V(C) at 27). Moreover, the record states that this employee was assigned to do tasks
assigned to student employees (not difficult tasks). (Tr.166:11-20). His problem was that he
was falling asleep at the computer, which cannot reasonably be argued to be an “effect” of the
job description change. This was a medical issue, not an effect.
The Judge also noted that this employee’s performance evaluation included the
“negative” comment that he was “slow regarding computer related training.” (D.6, L.33-34)
(Exc. # 37). This was not a negative evaluation, it merely noted that the employee was not yet
sufficiently performing his new duties. (CP # 2). That an employee was slow to learn new
duties cannot be an “effect” over which Respondent must bargain. Respondent was within its
contractual rights to require additional duties of its employees. Further, the Judge completely
ignored an equally persuasive performance evaluation in the record for a different employee who
gave positive feedback about the job description change. (See R. # 4; Tr.304, L.20-Tr.305, L.19-
22) (Exc. # 37, # 55). The Judge completely ignored Respondent’s brief on this point, which, as
noted above, cited to the record: “the record contains two positive performance evaluations in
28
which ADRSS employees from the Stacks unit reflected that the changed job duties offered an
opportunity for professional development.” (Respondent’s Post-Hearing Brief, Section IV(C) at
12). The Judge did not even reference this evaluation, let alone weigh its persuasiveness. This
omission was clear and prejudicial error as the Judge failed to consider all of the relevant
evidence in the record.
Similarly, the Judge’s finding that the record evinced “a litany of employee complaints
and concerns” is unsupported by the record. (D.7, L.37-40) (Exc. # 28). Tellingly, the Judge
made no citation to the record for this statement. Moreover, the Judge’s unattributed statement
merely poses hypothetical questions (i.e., “how employees would handle . . . how duties would
affect”), not actual effects. The Judge’s finding that the record contained “a litany” of
complaints about hypothetical “effects” cannot support a finding of material effects, and the
Judge’s conclusion without citation to the record is clear and prejudicial error.
Moreover, the Judge misconstrued the record in finding that “the record establishes that
employees complained directly to supervisors and to Rose about their inability to complete their
secondary work, and questioned whether their secondary assignment would have a negative
impact on their evaluations or meeting their performance goals.” (D.6, L.26-29) (Exc. # 26).
The evidence in exhibits GC # 22, GC # 24, and GC # 32 does not support her finding.
GC # 22 is a communication to all ADRSS employees soliciting feedback on the training
and new assignments. The Judge cited to it for an employee’s statement that his training
responsibilities were causing him to fall behind in his regular unit work. (D.6, L.26-29) (Exc. #
26). In fact, this single employee first responded that he did not like the work in his new unit
because he found it to be “a complete waste of his professional time” and because he did not
“find anything remotely interesting about [his new assignment].” (GC # 22). The Judge ignored
29
these statements. The Judge failed to assess the credibility of the employee’s complaint about
falling behind in his work in light of his clear expression that he had no desire to perform the
new duties required of him. The Judge failed to consider whether this employee’s complaint
about his workload was merely a thinly veiled expression of his preference to remain in his old
duties. See Berkshire Nursing Home, LLC, 345 N.L.R.B. 220 (2005) (Employee preference is
not relevant to the effects analysis). At the least, his statement demonstrates an obvious
motivation to exaggerate the impact of his new duties. The Judge’s failure to weigh this
employee’s credibility in light of the entire communication is clear error.
GC # 24 is an e-mail from an ADRSS employee to her supervisor requesting a meeting
on her annual performance goals and asking whether a previously-stated goal of training in a
secondary unit was moot because of the new job changes. This e-mail does not support the
Judge’s conclusion that “employees complained” about a negative impact on performance
evaluations. (Exc. # 26). There is nothing indicative of an “effect” or even a complaint in this e-
mail; the employee was merely asking whether the job description change made a previous goal
moot. (GC # 24).
GC # 32 is an e-mail from an ADRSS employee to her supervisor regarding a concern
that scheduling might affect her performance goals. In response to her e-mail, her supervisor
reassured her that her overall performance “looked great”, and would not result in any negative
evaluation or “effect”. (GC # 32). This is a single employee with a single unfounded concern.
(Exc. # 26).
The Judge’s finding that “[o]ther employees had difficulty using the computer and
handling money” is unsupported by the record. (D.6, L.10) (Exc. # 20). The Judge made no
citation to the record for this conclusion. Indeed, there is nothing in the record regarding any
30
employee who had problems with the computer systems other than a single employee “who was
not particularly proficient at computer work”. (D.6, L.8; Tr.166). The portion of the hearing
transcript cited by the Judge merely states that other employees were assigned to the Circulation
unit from units that did not use much technology. (Tr.166, L.8-10). The Judge’s conclusion that
“Other employees had difficulty using the computer and handling money” does not follow from
this portion of the record. Moreover, the collective bargaining agreement allows Respondent to
add related computer duties to the job description, so the fact that a single employee struggled to
learn new computer duties qualifies as an inevitable consequence of management’s right to add
computer duties to this employee’s responsibilities. As the Office of Appeals noted, Respondent
had the right to require the additional duties and the employee was required to learn the duties.
(See R # 1; Respondent’s Post-Hearing Brief, Section V(B) at 21-22).
Similarly, the Judge’s finding that the job description change “created problems not only
during the 3-week training period beginning in January 2014, but also thereafter” finds no
support in the record. (D.5, L.38-39) (Exc. # 18). The Judge made no citation to the record for
this erroneous conclusion as there is no evidence in the record to support this statement. The
Judge cited to footnote 3, which refers to evidence in Respondent’s brief that not all employees
consistently worked in a second unit. The Judge not only failed to support her conclusion with
evidence from the record, she cited to a portion of Respondent’s brief which supports the
conclusion that many of the ADRSS employees experienced no change at all from their old
duties. The Judge’s conclusion that the job description change created “problems” during
training and “thereafter” plainly is not supported by the record.
The Judge improperly cited to the Charging Party’s Post-Hearing Brief in finding that
“there is some question as to how seniority for layoffs applies given the changes in job duties, as
31
the agreement apparently defines seniority for layoffs in terms of length of service within a
particular job title . . . .” (D.5, fn. 2) (Exc. # 17). The Judge cited to the Charging Party’s
argument in its brief, not the record, for this statement. Inexplicably, the Judge disregarded the
testimony in the record of Human Resources Director Enrique Yanez who established that
seniority rights did not change after the job description change. (Tr.310, L.2-5). The Judge’s
erroneous suggestion that seniority rights were altered by the job description change runs
contrary to the substantial weight of the evidence in the record.
Finally, the Judge’s finding that “in most such situations there are alternatives involving
the effects of the employer’s underlying decision that the employer and union can explore to
avoid or reduce the impact of the change without calling into question the decision itself” is
irrelevant because there were no effects that required bargaining. (D.6, L.48-50) (Exc. # 30).
The Union demanded bargaining before the new job description took effect, and the record
contains no evidence of substantial or material effects.
III. The Numerous Factual and Legal Errors in the Judge’s Decision WarrantDismissal of the Complaint Under Board Law.
As noted at the outset of this brief, a failure of a judge to explicitly review and
meaningfully consider all of the relevant evidence warrants dismissal of the complaint. Jewel
Bakery, Inc., 268 NLRB 197 (1984). The following exceptions are all of the remaining
inaccuracies, misquotations, and mischaracterizations of the record by the Judge. The sheer
volume of all these mistakes leads to the inevitable conclusion that the Judge failed to
meaningfully consider all of the relevant evidence in the record. Accordingly, the Complaint
must be dismissed.
The Judge’s finding that “many [ADRSS employees] had indicated in an informal
meeting that they were satisfied with the experience” is an imprecise recitation of the record.
32
(D.3, L.31-32) (emphasis added) (Exc. # 1). In fact, the e-mail referred to by the Judge, admitted
into evidence as GC # 3, stated “[a]t a recent informal meeting about staff sharing, all the staff
who participated in the program reported that they would ‘do it again’ if given the opportunity.”
(See GC # 3) (emphasis added). The Judge’s change of the record from “all” to “many”
inaccurately minimized the support among ADRSS employees for the staff sharing program.
The Judge’s characterization of this e-mail was contrary to the substantial evidence in the record
that there was widespread support among ADRSS employees for the job duties changes. (GC #
3).
The Judge’s finding that “[w]ith this background, Respondent announced that it was
revising all job descriptions for the ADRSS employees” is an imprecise recitation of the record.
(D.3, L.35-37, citing GC # 3) (Exc. # 2). In fact, GC # 3 states “Given this success, the ADRSS
management team revised the job description for grade 8 clerical staff.” (emphasis added).
Again, the Judge inaccurately minimized the successful aspects of the programs that formed the
basis for the decision to change the job description. This characterization of the content of GC #
3 is contrary to the evidence in the record, which showed that the blended positions and
voluntary cross-training program that preceded the job description change were successful
predecessors to the new ADRSS job description.
The Judge’s finding that GC # 11 contained a grammatical error was incorrect. (D.4,
L.39) (Exc. # 9). In fact, GC # 11 stated “routine”, not “routines”, so the Judge’s signal of
“(sic)” was not accurate and changed the meaning of the document in evidence. GC # 11 states
in relevant part “[a]ssign and train part-time staff to assist with routine operations of ADRSS
units.” Standing alone, this is a minor point. Together with all of the other inaccurate citations
to the record, this demonstrates a failure by the Judge to meaningfully consider the record
33
warranting dismissal.4
The Judge misattributed statements to the Director of the ADRSS department, Kristina
Rose, on three occasions in the decision, including the following two statements which were
complete fabrications of testimony:
• The finding that “Rose explained that the employees would be assigned to work in a
secondary unit from 8 to 14 hours per week” improperly attributes to Ms. Rose
statements not contained in the record. (D.4, L.44-46, citing GC # 11) (Exc. # 10).
• The finding that Ms. Rose stated that “secondary assignments had been determined based
on prior staff-sharing experiences and performance goals” improperly attributed to Ms.
Rose statements not contained in the record. (D.4, L.45-46, citing GC # 11) (Exc. # 11).
There is no testimony from Kristina Rose in the record as she was not a witness at the hearing.
The Judge improperly attributed the written content of the presentation slides in GC # 11 as
though it were testimony by Kristina Rose. The Judge apparently guessed as to what Ms. Rose
said at the presentation based on the content of the presentation slides. As an evidentiary matter,
this is clear error under the Federal Rules of Evidence. The Judge’s reliance on this “testimony”
of Ms. Rose cannot form the basis of a conclusion that the job description change generated
substantial effects because it is not evidence, it is conjecture. Moreover, the Judge inaccurately
quoted the presentation slide in GC # 11. The slide actually states that secondary “[a]ssignments
[would be] based on prior staff-sharing unit, current work or your goals”. (GC # 11). The
accurate content of the slide signals a more flexible employee-centric approach to assignments
than the Judge’s erroneous quotation that that “secondary assignments had been determined
4 In another minor but meaningful example of the Judge’s imprecision, the Judge’s finding that “the complaint onlyalleges an unlawful refusal to bargain regarding the effects of such changes, not the decision itself” is not fullyaccurate. (D.5, L.21-22) (Exc. # 15). In fact, the Complaint alleged a failure to bargain over effects, and also afailure to furnish information requested by the Union. The union later withdrew this charge. (D.1, fn. 1). This is aminor point on its own but indicative of a larger problem with the Judge’s decision, namely, a lack of dueconsideration of the record and all of the relevant evidence.
34
based on prior staff-sharing experiences and performance goals.” Most importantly, the Judge’s
misattribution of testimony for Ms. Rose shows that the Judge did not carefully consider the
evidence in the record. This inaccurate recitation of the record is indicative of the Judge’s
failure to closely and meaningfully consider all of the relevant evidence in the record.
The Judge’s third inaccurate attribution of Ms. Rose was: “[i]n response to questions
from employees, Rose indicated that the employees were expected to perform at the same level
as the recently hired blended employees.” (D.5, L.1-2) (Exc. # 12). Once again, the Judge
appears to attribute statements to Ms. Rose that are not contained within the record. Although
attributing the statement to Rose, the Judge in fact cited to the testimony of Union shop steward
Jasmin Smith who provided this testimony at the hearing, not Ms. Rose. The Judge improperly
attributed statements to Ms. Rose that were in fact inadmissible hearsay statements by Union
shop steward Jasmin Smith regarding alleged statements of Ms. Rose. The Judge’s
misattribution is clear error, as is her citation to inadmissible hearsay to support her erroneous
conclusion that the implementation of the job description change created effects over which
Respondent was required to bargain. The Judge’s improper attribution to Ms. Rose three times
shows that the Judge did not carefully consider the evidence in the record.
The Judge improperly summarized the record by stating “Respondent, by its attorney
Dubin, responded on December 13, 2013, that it was not required to bargain regarding the issue,
because the union had waived its rights in this respect given the broad management rights and
job description clauses contained in the collective-bargaining agreement.” (D.5, L.12-16)
(emphasis added) (Exc. # 14). In fact, GC # 10 – upon which the Judge relied in making this
finding – is an e-mail from Ms. Dubin which states: “NYU is within its rights under the contract
to revise the job description for grade 8 clerical staff in ADRSS, and to manage its operations
35
and direct its workforce, including the work performed by ADRSS employees. There is no need
to bargain over such changes. NYU, however, acted in good faith by informing the Union of this
change on July 26, 2013, months before implementation, and since then has been responding to
the Union’s questions and requests for information.” This has been Respondent’s rightful
position all along and the Judge’s inaccurate paraphrasing of this position as “the issue” is an
inaccurate recitation of the record. This paraphrase is another example establishing that the
Judge did not give due consideration to Respondent’s position or the evidence in the record.
The Judge misquoted the Office of Appeals decision that “further proceedings not
included in the complaint are unwarranted.” (D.5, L.27-30) (Exc. # 16). In fact, the Office of
Appeals wrote: “further proceedings on the allegations not included in the complaint are
unwarranted.” (R #1). This is yet another example of the Judge’s inattention to the details of the
record, in this case on a particularly important aspect of these proceedings at the Office of
Appeals.
The Judge ignored, overlooked, and failed to analyze relevant and material aspects of GC
# 3. (Exc. # 53). The Judge stated: “Respondent also announced that training for the employees
under the new system would be provided, including so-called ‘shadow’ training, where a newly
assigned employee works side by side with an experienced employee in their second assigned
department.” (D.3, L.39-42; GC # 3). GC # 3 in fact contained a large amount of detail about
the training program Respondent anticipated implementing for the job duty changes, the material
details of which the Judge overlooked or ignored. Importantly, in GC # 3 Ms. Cardeli-Arroyo
emphasized that “No staff will be asked to change their current work schedule as a result of this
initiative.” The Judge ignored this point. Ms. Cardeli-Arroyo also detailed the following aspects
of training in GC # 3, which the Judge ignored:
36
• General orientation:
o overview of unit’s work and goals;
o expectations for scheduling, communication, roles, etc.;
o overview of training process, introduction to shadow employee;
o including new employees, schedules permitting, in departmental meetings.
• Shadow training
o supported by supervisor as needed;
o includes introduction to dept. procedures and co-workers;
o shadowing to last three months;
• Mini monthly manuals used as teaching tools to guide shadowing, including checklist to
be reviewed each week.
• As often as needed, supervisor meets with new staff and shadow partner to review what
learned and answer questions.
• Home department supervisor will check in with second unit supervisor and shadow
buddy frequently to ensure that pace of training is comfortable for all.
IV. Procedural Exceptions
The Judge’s admission over Respondent’s objection and reliance on certain testimony of
Union Representative Linda Wambaugh was improper as Ms. Wambaugh primarily testified
about the Union’s information request, which is irrelevant to this proceeding.5 (D.3, L.46-51-
D.4, L.1-2; D.4, L.16-18; D.1, fn. 1) (Exc. ## 5, 59). The Judge also erroneously adopted Ms.
Wambaugh’s conclusory allegation that “the requested information was necessary to determine
the impact of the changes.” (D.4, L.17-18). The information request is not at issue in this
proceeding, and there is no other support in the record for the Judge’s adoption of this statement.
(D.1, fn. 1).
5 Respondent’s attorney objected to portions of Ms. Wambaugh’s testimony for a variety of reasons, including thatMs. Wambaugh had no personal knowledge of the purported impact of the job description change. (Tr.52-Tr.60;Respondent’s Objections at Tr.52, L.18, Tr.53, L.25, Tr.56, L.21-24). However, even assuming she did have somepersonal knowledge, her testimony largely supported Respondent’s position that the Job Description change did notaffect compensation, benefits, seniority rights, schedules, primary supervisors, and resulted in no layoffs. (Tr.107,L.18-Tr.115, L.22).
37
The Judge’s finding that in response to the Union’s questions at the September 9, 2013
meeting “Respondent’s officials provided only general answers, and most of the questions were
referred to ADRSS Dept. Head Kristina Rose, who did not attend the meeting” is irrelevant and
improper. (D.4, L.12-14) (Exc. # 7). The Judge’s assertion that “Respondent’s officials
provided only general answers” is not an accurate statement of the record. In fact, Union shop
steward Jasmin Smith testified at the hearing to several detailed responses provided by
Respondent at the meeting, including the origination of the idea to change the job description,
that the job change did not result in a reduction in staffing, reasons that the staff would benefit
from the change, and that assignments would be made based on workflows. (Tr.152, L.4-Tr.153,
L.1-16).
The Judge’s finding that “the Union was not altogether satisfied” with the Respondent’s
information production is irrelevant and inaccurate. (D.4, L.19) (Exc. # 8). Respondent’s
response to the Union’s information request is irrelevant in this proceeding because the Union
withdrew the charge claiming a failure to provide information before the hearing. (D.1, fn. 1).
Moreover, the portion of the record cited by the Judge for this conclusion indicates that the
Union was satisfied: “Q: And, did the employer respond to this information request? A: Yes. I
believe so.” (Tr.69, L.16-17). The Judge’s erroneous finding created an inaccurate inference
that Respondent was not diligent in responding to information requests and demonstrates that she
failed to meaningfully consider all of the evidence in the record.
The Judge’s Conclusion of Law No. 3 that Respondent violated Section 8(a)(5) and (1)
by refusing and failing to bargain with the Union over the effects of its decision to change the job
duties and descriptions of ADRSS employees is clear error of law for the reasons stated herein
supra. (Exc. # 45).
38
The Judge’s Conclusion of Law No. 4 that the above violation is an unfair labor practice
affecting commerce within the meaning of Sections 2(6) and (7) is clear error of law for the
reasons stated herein supra. (Exc. # 46).
The Judge’s Remedy requiring Respondent to cease and desist “from such conduct” is
improper. (D.9, L.35-36) (Exc. # 47). The Judge’s order is impermissibly vague as to the
statement “from such conduct” and is clear error for the reasons stated herein supra.
The Judge’s Remedy “requiring that Respondent rescind all adverse effects of the
changes visited upon the bargaining unit employees, including removing any adverse comments
regarding employee work performance related to the changes which appear in employee work
performance evaluations” is legal error as it impermissibly infringes on Respondent’s
collectively bargained-for rights, and overlooks the undisputed record that no ADRSS employees
suffered adverse performance evaluations as a result of the job description change. (D.9, L.42-
45; D.10, L.21-24) (Exc. # 48). The Judge did not specifically identify any “adverse effects” in
her decision, other than “adverse comments regarding employee work performance related to the
changes which appear in employee work performance evaluations.” To be clear, the record only
contains two performance evaluations, both of which are positive overall. There are no
statements in either of these evaluations that could reasonably be construed as “adverse”. More
importantly, Respondent is well within its managerial rights to make comments about
employee’s performance in the regular management and direction of its workforce. The Judge’s
attempt to inject the Board or the Union into Respondent’s performance evaluation process is
patently improper and violates the parties’ collective bargaining agreement. The Judge’s order to
remove “adverse comments” from employee evaluations clearly violates Respondent’s
collectively-bargained for rights under the management rights clause.
39
The Judge’s Order under subsections 1(a) and (b) requiring Respondent to cease and
desist from refusing to bargain with the Union over the effects of changes in the job duties and
descriptions of ADRSS employees, and interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act is clear error because the
Union waived its right to bargain over effects and any effects of the job description change were
de minimis, for the reasons stated herein supra. (Exc. # 49).
The Judge’s Order under subsection 2(a) requiring Respondent to bargain with the Union
over the effects of changes in the job duties and descriptions of ADRSS employees is clear error
because the Union waived its right to bargain over effects and any effects of the job description
change were de minimis, for the reasons stated herein supra. (Exc. # 50).
The Judge’s Order under subsection No. 2(c) requiring Respondent to post the notice
attached to the Decision is clear error because the Union waived its right to bargain over effects,
any effects of the job description change were de minimis, and Respondent has not committed an
unfair labor practice. (Exc. # 51).
The Judge’s Order under subsection No. 2(d) requiring Respondent to file a sworn
certification is clear error because the Union waived its right to bargain over effects and any
effects of the job description change were de minimis, and because Respondent has not
committed an unfair labor practice. (Exc. # 52).
The Judge erred in denying Respondent’s petition to revoke the subpoenas issued by the
Charging Party and General Counsel because they were vague and unclear as to the documents
and information they sought, overly broad and unduly burdensome, and because all relevant
documents had already been produced. (Tr.24-Tr.29) (Exc. # 58). For the reasons articulated on
the record (Tr.24-Tr.29), and because the Judge failed to clarify the scope of the subpoenas,
40
resulting in undue burden and expense to Respondent, the Judge erred under federal law in
denying Respondent’s petition to revoke the subpoenas.
The Judge erred in admitting exhibits GC # 20(a) and GC # 20(b) over Respondent’s
objection (Tr.211, L.3-Tr.212, L.20) because these documents lacked foundation, are irrelevant
to the ultimate issue in the case, and because they were offered to support a legal conclusion, as
such ruling is contrary to the Federal Rules of Evidence. (Exc. # 60).
The Judge erred in admitting exhibit GC # 22 over Respondent’s objection (Tr.213, L.25-
Tr.215, L.8) because this document lacked foundation and is irrelevant to the ultimate issue in
the case, as such ruling is contrary to the Federal Rules of Evidence. (Exc. # 61).
The Judge erred in admitting exhibit GC # 24 over Respondent’s objection (Tr.216, L.7-
Tr.217, L.11) because this document is irrelevant to the ultimate issue in the case, as such ruling
is contrary to the Federal Rules of Evidence. (Exc. # 62).
The Judge erred in admitting exhibit GC # 25 over Respondent’s objection (Tr.218, L.24-
Tr.219, L.22) because this document lacked foundation, implicates the privacy rights of a non-
party, and is irrelevant to the ultimate issue in the case, as such ruling is contrary to the Federal
Rules of Evidence. (Exc. # 63).
The Judge erred in admitting exhibit GC # 26 over Respondent’s objection (Tr.222, L.16-
25) because this document lacked foundation, implicates the privacy rights of a non-party, and is
irrelevant to the ultimate issue in the case, as such ruling is contrary to the Federal Rules of
Evidence. (Exc. # 64).
The Judge erred in admitting exhibit GC # 30 over Respondent’s objection (Tr.227, L.8-
Tr.228, L.5) because this document lacked foundation and is irrelevant to the ultimate issue in
the case, as such ruling is contrary to the Federal Rules of Evidence. (Exc. # 65).
41
The Judge erred in admitting exhibit GC # 32 over Respondent’s objection (Tr.229, L.16-
Tr.230, L.14) because this document lacked foundation and is irrelevant to the ultimate issue in
the case, as such ruling is contrary to the Federal Rules of Evidence. (Exc. # 66).
The Judge erred in admitting exhibit GC # 34 over Respondent’s objection (Tr.236, L.7-
Tr.237, L.22; Tr.239, L.25-Tr.241, L.2) because this document lacked foundation, is
inadmissible hearsay, and is irrelevant to the ultimate issue in the case, as such ruling is contrary
to the Federal Rules of Evidence. (Exc. # 67).
The Judge erred in admitting exhibit GC # 35 over Respondent’s objection (Tr.243, L.6-
Tr.244, L.9; Tr.244, L.22-Tr.245, L.8) because this document lacked foundation and is irrelevant
to the ultimate issue in the case, as such ruling is contrary to the Federal Rules of Evidence.
(Exc. # 68).
The Judge erred in admitting exhibit CP # 1 over Respondent’s objection (Tr.246, L.19-
22; Tr.247, L.12-Tr.248, L.4) because this document lacked foundation and is irrelevant to the
ultimate issue in the case, as such ruling is contrary to the Federal Rules of Evidence. (Exc. #
69).
The Judge erred in admitting exhibit CP # 2 over Respondent’s objection (Tr.249, L.7-12;
Tr.249, L.24-Tr.251, L.10) because this document lacked foundation and is irrelevant to the
ultimate issue in the case, as such ruling is contrary to the Federal Rules of Evidence. (Exc. #
70).
The Judge erred in admitting testimony regarding Respondent’s compensation decision-
making process over Respondent’s objection (Tr.261, L.7-23) because the compensation of the
ADRSS employees was not at issue in this case and the testimony is irrelevant to the ultimate
issue in the case. The Judge further erred in granting the Charging Party’s request for documents
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