After more than two years of litigation, the National Labor Relations Board conceded defeat in its case against New York University involving redefined job descriptions for NYU’s library staff. The Union of Clerical, Administrative and Technical Staff at NYU, Local 3882, AFL-CIO filed an unfair labor practice charge against New York University at the NLRB in January 2014, alleging that NYU unilaterally changed the job descriptions of certain bargaining unit employees without bargaining about the change or its effects in violation of the National Labor Relations Act. The NLRB dismissed the Union’s claim that NYU was required to bargain over the job description change based on the plain language of NYU’s collective bargaining agreement, which reserved such rights exclusively to NYU. Nevertheless, the NLRB allowed the Union’s charge to proceed to an administrative trial on the theory that NYU was required to bargain over the “effects” of the job description change despite clear federal law dictating that NYU had no such obligation. After a multi-day hearing, an Administrative Law Judge issued a decision finding NYU in violation of the NLRA for failing to bargain over the effects of the job description change. The ALJ acknowledged that her decision was in conflict with federal law but cited the NLRB’s long-standing policy of non-acquiescence to federal law that conflicts with NLRB agency law. Venable appealed the ALJ’s decision to the full NLRB in Washington D.C., again citing clear precedent from the Circuit Court of Appeals for the D.C. Circuit supporting NYU’s right to change and implement the job duties changes for its employees without bargaining. Continuing its policy of non-compliance with federal law, the NLRB affirmed the ALJ’s decision.
Relying on the clear precedent, NYU appealed the NLRB’s final decision to the D.C. Circuit. Venable’s briefs were based on the same legal framework presented to the NLRB: NYU had reserved the unilateral power to define and implement the job duties of its workers under the collective bargaining agreement.
NYU’s case became even stronger when, after the briefing was completed, the DC Circuit issued an opinion in a separate but analogous case, Heartland Plymouth Court MI v. NLRB, effectively holding what NYU had been arguing all along – that the NLRB acts in bad faith when it drags employers through litigation over charges that it knows are contrary to federal law. The DC Circuit took the rare step of awarding attorney’s fees to Heartland for the NLRB’s improper actions. Apparently heeding the DC Circuit’s admonition in Heartland, the NLRB filed a motion seeking summary reversal of its order finding NYU in violation of the NLRA. After more than two years of costly litigation, the NLRB’s filing acknowledges that NYU’s position from the outset of the litigation was correct and that controlling DC Circuit law mandated dismissal of the NLRB’s order.
The lesson for employers is that the NLRB appears to have acknowledged that its policy of non-acquiescence in the context of effects bargaining charges is untenable. The Heartland attorneys’ fees decision along with the NLRB’s voluntary concession of defeat against NYU is solid precedent for employers to rely on when facing effect bargaining charges at the NLRB. This case was the first to rely on the Heartland decision, an important development for employers in disputes with unions. While this is an encouraging development for employers, the language of a collective bargaining agreement is the crucial factor in determining whether or not an employer has any effects bargaining obligation.