Duke University

National Labor Relations Board - Unpublished Board Decisions

Jan 4, 2017

10-RC-187957 (N.L.R.B. Jan. 4, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DUKE UNIVERSITY
Employer
and Case 10-RC-187957
SERVICE EMPLOYEES
INTERNATIONAL UNION CLC/CTW
Petitioner
ORDER
The Petitioner’s Request for Review1 of the Acting Regional Director’s acceptance of the
Employer’s offer of proof is denied as it raises no substantial issues warranting review.2

1 As there are no longer special appeals to the Board in the representation case context (see 79
Fed. Reg. 74382), we shall treat the Petitioner’s Special Appeal as a Request for Review. See
Sec. 102.65(c) and 102.67(c) of the Board’s Rules and Regulations.
2 In denying review, we do not reach the issue of whether evidence described in the Employer’s
offer of proof is sufficient to sustain its position that the petitioned-for graduate students are
distinguishable from the graduate students in Columbia University, 364 NLRB No. 90 (2016), as
the hearing has already ended. Nonetheless, we emphasize that an offer of proof should
demonstrate with specificity how the evidence described is distinguishable from facts in
controlling precedent to justify the evidence being received. See Sec. 102.66(c) of the Board’s
Rules and Regulations.
Member Miscimarra concurs in the denial of Petitioner’s Request for Review on the basis
that the hearing’s conclusion renders moot the question of whether the Employer’s offer of proof
was sufficient to permit the introduction of evidence for the purpose of disputing the employee
status of the petitioned-for graduate students by distinguishing them from the student assistants
found to be employees in Columbia University, supra. However, for the reasons explained at
length in the dissenting views set forth in the Board’s Election Rule, 79 Fed. Reg. 74308, 74430-
74460 (December 15, 2014) (dissenting views of Members Miscimarra and Johnson), Member
Miscimarra believes it is inappropriate for the Board to treat offers of proof as a substitute for
record evidence regarding any matter that is relevant in a representation case. Id. at 74446-
74447 (observing that an offer of proof “describes evidence that is not part of the ‘record,’ which
means the described matters—since they have been excluded from the record—cannot be the
basis for any decision or appeal on the merits”) (emphasis in original; footnote omitted). In
addition to dissenting from the Election Rule, Member Miscimarra dissented from the Board’s
holding in Columbia University, supra, that the student assistants in that case were employees for
purposes of the Act. He notes, however, that the Board does not presently have pending before it
the merits of whether the petitioned-for graduate students are employees. Like his colleagues,
Member Miscimarra does not reach or pass on this issue.
2
MARK GASTON PEARCE, CHAIRMAN
PHILIP A. MISCIMARRA, MEMBER
LAUREN McFERRAN, MEMBER
Dated, Washington, D.C., January 4, 2017.