may please the court my name is jake rubenstein and i represent the university of chicago we call upon the court to reach the following conclusion that the board of acting through its regional director committed reversible error by refusing to conduct an evidentiary hearing to allow the university to present evidence that students who hold part time jobs at the university library are temporary or casual employees who under board law do not manifest a sufficient interest in their terms and conditions of employment to warrant eligibility for collective bargaining we asked the court to vacate the board's bargaining order to deny the board's cross application for enforcement and to remain on the case back to the board with instructions to conduct the hearing to which the university is entitled one with the result given the evidence and the columbia university precedent why wouldn't the result is no sense in which the outcome of this case is determined by the board's d decision in the two thousand and sixteen columbia university case the columbia university case held on a detailed factual record following a multi day hearing that using the fact intensive case by case analysis that the board and courts used to determine whether employees are temporary or casual and if they are whether they manifest a sufficient interest in their terms and conditions of employment columbia on that record concluded that the graduate assistance at that university although they were temporary and casual employees manifested  vission interest in their employment to be entitled to collectively bargain in this case there was no such hearing there was no evidentiary hearing there were no witnesses called there was no examination there was no cross exam i take it you submitted that any party shall have the right to appear at any thiering to call examine and cross examine witnesses and to introduce into the record evidence of the significant facts that support the party's contention it's not your primary aim to challenge columbia university no your honor our primary i was all over your record before the board your honor when we when this case was pending before the board columbia university and the correctness of it in play however the board ruled on that and the board declined to use this case the university of chicago case as an opportunity to reconsider the university the issue presented court is a much narrower issue the issue present to do this court is not whether the board correctly decided columbia university rather the issue presented to this court is whether the board acting through its regional director violated the act the board's rules and the guidance from the for its own general counsel in refusing to conduct an evidentiary hearing your honor the evidence you're hearing that we requested in this case and sufficient interest in the terms and conditions of employment to warrant collective bargaining in short judge kenedy evidence which show that these students are on a similar footing to the employees at you in the board's nine hundred and ninety eight  case where the board on a factual record determined that costume bakers working for macy's in new york were temporary employees who did not manifest an interest in their terms and conditions sufficient to warrant collective bargaining and as i said the columbia decision is absolutely not at issue in this case san francisco art institute is a case which columbia purported to overrule a footnote one hundred and thirty in the columbia decision says in this case our argument before the board was not that the students in this case are to be excluded from collective bargaining solely because they are students not at all in fact the argument that we sought to make before the board is that the temporary casual come and go as you please nature of employment is such that they do not manifest sufficient interest in their terms and conditions of employment in the separate appendix page fifty five paragraphs seventy seven and eight of the offer of proof explain how the student employees are temporary and casual and have only a tenuous relationship to the working conditions for example that said student schedules are designed to accommodate their academic commitments at the beginning of each quarter library supervisors ask students to to tell them how many hours they want to work and your honor in columbia university the individuals it is she were grad teaching and research assistants they maintained their positions as grad teaching and research assistants over a period of years while conducting their study the students in this case are casual part time library employees who never work more than twenty hours a week and that's in the record pages separate appendix fifty one dollars to fifty nine dollars and some work as few as eight hours a week and they essentially make their own schedules they tell their supervisors when they want to work and when they don't want to work and they tell their supervisors how often they want to work in addition to this your honor as the offer of proof makes clear the students at least in this case their their time in their positions is inherently limited by student status and they are hired on a quarter to quarter basis and may or may not have any expectation of working in the next quarter simply because they work in the present work this puts them on a similar footing to the costume makers in the macy's case and for that reason your honor at a minimum we should have been allowed an eviden true an employee who has summary judgment granted against her in the district court on a discrimination claim i do not your honor and what's different than the primary difference is that we are operating here in the context of the national labor relations act which says that parties are entitled to an appropriate hearing that's in section nine c one we've got the board rules that say parties shall have the right to appear at hearings to examine and cross y was not helpful in the discussion your honor i'm not i'm not saying anything other than in this case the university of chicago was intitled to the same level of due process the same modicum of due process that every other employer in every other case cited by the board cited by the union and cited by the university in our briefs received so that and that is the board has made a pretty broad decision maybe right maybe wrong going to be not have to challenge the rule the rule itself is appropriate and we are not challenging the rule at all in this appeal for what we are challenging in this appeal is simply the refusal by the board to allow us to present evidence at an evidentiary hearing and if you look at the cases cited and relied upon by the board in the union the kansas city kansas city repertory theatre case support case from two thousand and ten which both both opposing parties cited and relied on heavily in their briefs that along with every other case cited by all the parties in this case was a case where there was a full evidentiary hearing with witnesses that you'll go that far pardon me or on another way that it violates the act i would not even go that far your honor there are circumstances in which the board would be justified in saying that a party did not present enough evidence to entitle it to any an evidentiary hearing however in this case the issue on which we saw the hearing was a temporary or casual status and the offer of proof is manifestly adequate to entitle us to a hearing on that because it contains facts which would demonstrate that these employees are temporary and casual and that they do not manifest a sufficient intense interest in their terms and conditions of employment to warrant collective bargaining that's correct  election hearing to decide that question the court really only need to look at two things earth of all the offer of proof that was actually presented to the regional director in particular i direct the court to appendix pages fifty wanted the board to overrule columbia university university is no longer making that argument to the court as appendix page fifty seven dollars is the only two paragraphs that the university identified to the regional director never presented to the board as a basis for quote unquote temporary or casual status nor has the university cited any board decision in history where the board has considered those factors in making th which is an argument that the university is no longer making its case that councils referencing go to this temporary status argument that they're trying to develop if it's not your honor per side note that as unique situation the facts are that you had and maybe higher seasonal employees around the holiday season for a few weeks or couple of months at a time then they were left and they knew employees would be hired for the following season the key fact in that case with the board empathized is that there is no evidence that any of the employees in the prospective unit had any expectation of being recalled for the following season and when the board when the election was held there was only a week or two left in that holiday season so what the board spend is that it would not affect the waste bargaining to credit to us that was a bargaining unit of employees who would no longer be working for the employer multiple years including one prospective voters who've been in the employment for eight years and those facts are very similar to on the university contrary to the universities arguments a moment ago columbia university  involved both graduate students and some undergraduates who had an average tenure of two semesters which is very similar to the facts here the board's decision in columbia university directly court in particular to web pages fourteen and twenty four dollars to twenty five dollars was not a fact specific finding it was a legal conclusion rejecting this precise argument in columbia university the university not only contested the employee's status of the undergraduate and graduate student workers there but they made an alternative argument which is identical to the one here that students are inherently on a finite employment timeline because their student status will end at some point so their student employment will end at some point the university argued to the board in the alternative that that meant student employees are always ineligible temporary employees and the board explained in detail with reasoning that the in making a community of interest determination to find that certain employees with a finite tenure lactase many venturous with other employees in a proposed unit who are permanent for long term employees and that situation you same interest in bargaining over you know a pension or something for a long term employee however as the board has made very clear in both columbia university and prior decisions such as the kansas city repertory theater decision if the court looks the best face when you have an entire unit of similarly situated employees as you do here those individuals do not constitute temporary employees under florida law there is simply no precedent under board law that exists for the university's conception of temporary employee status nor have they cited any in their opening brief the two cases they relied on were san francisco art institute and sa got food service which if a court looks at those cases relied on the primary status reasoning that the board has rejected and overruled in columbia university including by overruling by name san francisco art institute something that the university previously acknowledge evidence has to be quote relevant to the existence of a question of representation including the appropriateness of the unit also one of its two dollars c s hamilton i believe you pointed out the final  opportunity here and if the regional director determines that the evidence described is insufficient to sustain the proponents of this and the evidence not be received so it's not even discretionary if the regional director had wanted to enter that evidence at the point where the regional director has affirmed by the board found that the narrow facts prospered in the offer of proof are simply insufficient under governing board law and again returning to the actual content leave university and nd that the average tenure as of the student workers in this unit at the time of the hearing was nine months but clearly under columbia university alone that is insufficient to make a unit inappropriate when all of the employees are similar situated as they are here furthermore at the core it looks beyond columbia university and outside of the student context the board has overseen collective bargaining for a decade myriad industries that involve a much shorter term and much more transient employment for example the construction industry the entertainment industry where you often have been police who are hired for a single job which can even last a few are insufficient it's rejected and the purpose of that your honor to explain the board rule is that there is an interest in ensuring that employers do not use these procedural mechanisms to delay their representation election for a requirement issued a declaration that it is considering rule making in this general area but to know two things very quickly about that st of all it's not clear that any rule making that does o would actually affect the students in this case the board or of its considerable making primarily involved students who are working in connection with their actual studies at the university which is typically the case with change to law on the area would affect the workers here secondly i would like to emphasize to the court that the board's rule making is generally a prospect of and the issue here that's before the court is the question of whether the board the process because it's usually lengthy when it finally concludes and even assuming again for the sake of argument that the board would make a change to the law that might affect the students in the situation that could be resolved when it happen hundred and sixty three appendix which we cited a couple times in our brief and universities where it's the issue of employee status of students as currently before the board in a number of cases involving graduate resurging teaching assistants and one it please the court your honor it's the board in the union are fighting so very hard in this case to present to prevent so little we are not asking this court to rule that the students in question are entitled to collective bargaining we are not asking this court to rule that temporary or casual employees are always entitle to collective bargaining we are not asking this court to pass judgment on the facility of the columbia decision all we are asking this court to do is to give the university of chicago the same modicum of due process that employers dating back to the stokely brothers case stated by the board in  in other words when there is a question about whether a group of individuals are employees at all or as in this case are temporary or casual employees who do not manifest a great interest in their terms and conditions of employment in all of those cases the board has held an evidentiary hearing in this case the hearing would have lasted probably for a matter of hours and that hearing would have created a factual record that would have enabled the board to make a defined boundaries of bargain units as opposed to excluding people entirely from protection of the act your honor the classification of temporary or casual employees has been used at times to define the boundaries of bargaining unit to board which involves student employees in that case the union was petitioning to represent a mixed group of students and non students but the board state in footnote nine that the union's fallback position to represent only students director did not cite that rule the regional director said that without explanation by the way which is a potential separate due process issue the lack of and analysis and the lack of explanation for the decision yes the the board said that the regional director said page two of the separate appendix that he was denying the hearing because the evidence evidence was insufficient however that decision was not only inconsistent with  border rule that he was citing it was inconsistent with guidance issued by the board's general counsel who supervises regional directors that two thousand and fifteen guidance says that bargaining unit appropriateness must be litigated at the pre election hearing and that the rules quote do not limit any party's right to present evidence in support of their contention so long as it is relevant to determining whether a question concerning representation exist