[00:00:02] Speaker 01:
All right.

[00:00:05] Speaker 01:
So who's starting?

[00:00:08] Speaker 03:
I think in our email correspondence, we said the employer would start, then followed by the union.

[00:00:13] Speaker 01:
I didn't get copies of that correspondence.

[00:00:15] Speaker 01:
Oh, sure, sure, of course.

[00:00:17] Speaker 01:
Tell me.

[00:00:17] Speaker 03:
Yeah, of course, of course.

[00:00:19] Speaker 03:
John Merrill on behalf of UPS Supply Chain Solutions, Inc., the respondent, cross petitioner.

[00:00:24] Speaker 01:
OK.

[00:00:28] Speaker 01:
And you're taking 10 minutes.

[00:00:30] Speaker 03:
Correct, Your Honor.

[00:00:31] Speaker ?:
OK.

[00:00:33] Speaker 03:
May it please the court, as stated, I'm John Merrill on behalf of UPS Supply Chain Solutions, Inc.

[00:00:39] Speaker 03:
This case involves a union election at my client's facility in Tracy, California.

[00:00:45] Speaker 03:
It involves what the NRB has for decades referred to as laboratory conditions.

[00:00:49] Speaker 03:
The concept comes from a 1948 case that says, in election proceedings, it is the board's function to provide a laboratory in which an experiment may be conducted under conditions as nearly ideal as possible

[00:01:01] Speaker 03:
to determine the uninhibited desires of employees.

[00:01:04] Speaker 03:
This court has described the policy consideration at play in the laboratory conditions concept as allowing voters quiet moments of appropriate reflection and a peaceful atmosphere for the casting of their votes.

[00:01:18] Speaker 03:
And that's from the Robert Tours case cited in our briefing from 1978.

[00:01:23] Speaker 03:
So there have been many decades of case law to establish the contours of laboratory conditions, and some of those cases

[00:01:30] Speaker 03:
involve some arguably arbitrary standards or amorphous standards to determine whether conduct interferes with laboratory conditions.

[00:01:39] Speaker 03:
There is one line of cases that establishes what I think is, on the other hand, a very easy standard to apply, which is that party representatives, whether union or the employer, should not be present in an area where voters need to pass in order to vote.

[00:01:57] Speaker 03:
The Pearson education case from 2001

[00:01:59] Speaker 03:
This address in our brief established that standard.

[00:02:02] Speaker 03:
It's also supported by older cases.

[00:02:04] Speaker 03:
The performance measurements case from 1964 that says the continued presence of the employer's president at a location where employees were required to pass in order to enter the polling place was improper conduct not justified by the fact that the president was instructing supervisors on the release of employees for voting purposes.

[00:02:20] Speaker 03:
In other words, the presence of a party representative in an area that voters have to pass to vote is objectionable.

[00:02:27] Speaker 03:
Robert Storrs

[00:02:28] Speaker 03:
Acknowledge that the physical proximity of campaigners.

[00:02:31] Speaker 05:
Why don't you tell us what's wrong with the?

[00:02:33] Speaker 05:
The the hearing officer and the regional director and the board all rejected your objections to this this election So why did they err why don't you just get right to the heart?

[00:02:46] Speaker 05:
Sure they erased four objections of course most of them pertain to what happened in the parking lot outside of the building and

[00:02:53] Speaker 05:
The election area was inside the building in a break room, if I'm not mistaken.

[00:02:59] Speaker 05:
You had to pass through some doors and areas to get to the break room.

[00:03:03] Speaker 01:
That's correct.

[00:03:04] Speaker 01:
There was an area outside the facility.

[00:03:07] Speaker 01:
There's a gate.

[00:03:08] Speaker 01:
Area outside the facility.

[00:03:10] Speaker 01:
Then you entered the building and then the break room was somewhere within the building.

[00:03:16] Speaker 01:
And all the things you're complaining about occurred in the parking lot outside of the facility.

[00:03:22] Speaker 05:
That's correct.

[00:03:23] Speaker 01:
Okay.

[00:03:24] Speaker 05:
So you had four objections about what happened.

[00:03:26] Speaker 03:
So why don't you tell us, you know, the main objection and the main thrust of those is that behavior, even in the parking lot, if it occurs in an area that voters have to pass in order to vote can be objectionable.

[00:03:38] Speaker 03:
This court's acknowledged that campaigning 150 feet away can be objectionable in the Roberts tours case.

[00:03:44] Speaker 03:
In the Nathan Katz realty case, you had union representatives just sitting in their car, not even talking to people, but honking.

[00:03:49] Speaker 03:
That's a DC Circuit case, and their continued presence was objectionable.

[00:03:53] Speaker 03:
In the Alliance Wear case... This case, what happened?

[00:03:59] Speaker 03:
Correct, correct.

[00:04:00] Speaker 03:
And all I'm trying to say is that behavior in the parking lot can be objectionable.

[00:04:05] Speaker 01:
Right, right.

[00:04:06] Speaker 01:
Of course, but none of the things you just said in those three cases happened here.

[00:04:10] Speaker 01:
There weren't cars with horns.

[00:04:13] Speaker 01:
So why is what happened here?

[00:04:15] Speaker 01:
I mean, was there even electioneering in the parking lot?

[00:04:20] Speaker 03:
There were prolonged discussions with the voters in the parking lot with several voters.

[00:04:25] Speaker 03:
There were voters who, you know, trying to get in the parking lot had to swerve to get around these union officials who, again, were present in the parking lot in an area that voters had to pass in order to vote.

[00:04:35] Speaker 03:
And the distinction of there being a physical barrier is certainly one that is discussed in many of these board cases.

[00:04:43] Speaker 03:
As I said, there are also cases where

[00:04:46] Speaker 03:
campaign messages could not be heard inside the facility.

[00:04:49] Speaker 01:
But could be heard.

[00:04:51] Speaker 01:
OK, so I think we can all agree with the abstract legal principles you're talking about.

[00:04:58] Speaker 01:
But here, for example, the board on the conversations, the board found that there were only three conversations, one each for grayism and Amador.

[00:05:09] Speaker 01:
And you're arguing that's electioneering?

[00:05:13] Speaker 01:
What was wrong with those conversations?

[00:05:16] Speaker 03:
They were prolonged conversations.

[00:05:19] Speaker 03:
In one instance, Gray did testify that the vote was discussed.

[00:05:22] Speaker 03:
She denies that there was actual urging to vote one way or another.

[00:05:27] Speaker 03:
You know, Amador says that he was just greeting the union, but that conversation lasted two minutes.

[00:05:35] Speaker 03:
You know, even regardless of electioneering, what these other cases that I mentioned stand for is the proposition that the mere presence of a party

[00:05:42] Speaker 03:
can interfere with those quiet moments of appropriate reflection.

[00:05:51] Speaker 05:
the representatives, the union representatives who were out in the parking lot in a gathered space.

[00:05:55] Speaker 05:
Some of them, they weren't all together at all the time, but at various points there were some near a fire hydrant, others near a table, others just standing around by cars.

[00:06:09] Speaker 05:
So your point is just the presence in that parking lot was intimidating.

[00:06:16] Speaker 05:
But correct, correct, to the eligible voters who were going to go in

[00:06:22] Speaker 05:
at the second shift before the second shift, go in and maybe vote.

[00:06:26] Speaker 03:
That's right.

[00:06:27] Speaker 03:
That's correct.

[00:06:28] Speaker 03:
And management acknowledged they sequestered themselves.

[00:06:32] Speaker 03:
They didn't want to be in front of the voters, but the union was present.

[00:06:35] Speaker 03:
They called out to some voters.

[00:06:37] Speaker 03:
They called out to some employees.

[00:06:39] Speaker 05:
The hearing officer

[00:06:41] Speaker 05:
in a very complete decision it looked like to me.

[00:06:44] Speaker 05:
It was some 16 pages, went through all the objections, went through all the evidence.

[00:06:48] Speaker 05:
There was conflicting testimony and she made findings basically rejecting many of the arguments you make about what took place out in the parking lot.

[00:06:58] Speaker 05:
Why, I mean, she heard the witnesses, you know, judge credibility and made specific findings.

[00:07:06] Speaker 05:
Why aren't, you know, substantial evidence sort of looks like it supports what she did.

[00:07:11] Speaker 05:
What do we do with that?

[00:07:13] Speaker 03:
I simply believe that the way the hearing officer applied the law disregarded these authorities.

[00:07:20] Speaker 05:
You don't object to her factual findings then.

[00:07:26] Speaker 03:
Well, there may be one or two very small things in the brief that we object to from a factual standpoint.

[00:07:32] Speaker 03:
Do you just say she got the law wrong?

[00:07:34] Speaker 03:
By and large, yes.

[00:07:35] Speaker 03:
Okay.

[00:07:37] Speaker 03:
Correct.

[00:07:38] Speaker 02:
That helps.

[00:07:39] Speaker 02:
Do we give deference to the board's reading of the law?

[00:07:43] Speaker 02:
I mean, put it another way, does Loper-Bright affect it at all, or I didn't see it raised in the briefs?

[00:07:49] Speaker 03:
It did not raise it in the briefs.

[00:07:51] Speaker 03:
I mean, part of that may be a function of timing and whether, I can't recall whether Loper-Bright was out when the briefs were prepared, but certainly it could have a bearing on the level of deference to which the board would be entitled.

[00:08:04] Speaker 03:
I could see that.

[00:08:12] Speaker 03:
The other, you know, just policy consideration I would mention is the concept discussed in Phillips Chrysler, which, again, involved very different behavior, but the idea that the message conveyed to employees by union agents trespassing on company property is that the employer is powerless to protect its own legal rights in the confrontation with the union.

[00:08:30] Speaker 03:
And, you know, we would also argue that that policy consideration is best served by a ruling that's consistent with Pearson Education and the other authorities cited in our brief

[00:08:42] Speaker 03:
Neither union reps nor company reps should be present in an area that voters have to pass in order to vote, whether it's the parking lot or behind closed doors.

[00:08:56] Speaker 05:
There was a board rep present during the election.

[00:09:00] Speaker 05:
Did the board rep before?

[00:09:02] Speaker 05:
It looks like there's a pre-meeting before the election gets underway and the board rep sort of sets the

[00:09:11] Speaker 05:
lays down some rules that the employer is supposed to abide by and union reps are supposed to abide by.

[00:09:18] Speaker 05:
Did he say anything at all about the parking lot?

[00:09:22] Speaker 03:
Nothing about the parking lot.

[00:09:23] Speaker 03:
The board agent made sort of a vague statement along the lines of you can't be in here, which is the polling area.

[00:09:30] Speaker 03:
The building.

[00:09:31] Speaker 03:
Right, right.

[00:09:31] Speaker 03:
You walk into the building, you go through security, you go into the polling area basically.

[00:09:35] Speaker 03:
And the regional director's decision sort of vaguely suggested that that might be the establishment of a no-election hearing zone by saying that there was no evidence that the board agent established a no-election hearing zone other than the polling area, something like that.

[00:09:52] Speaker 03:
But I think the board and the employer and even the union, I think, take the position that that was not the establishment of a no-election hearing zone, that vague comment that you can't be in here.

[00:10:05] Speaker 03:
Okay.

[00:10:07] Speaker 03:
All right.

[00:10:09] Speaker 03:
Any further questions?

[00:10:11] Speaker 01:
No.

[00:10:11] Speaker 03:
Thank you for your time.

[00:10:12] Speaker 01:
Okay, thank you.

[00:10:14] Speaker 01:
All right, so I guess Mr. Earl is going next.

[00:10:33] Speaker 04:
Good morning, your honors, and may it please the court.

[00:10:35] Speaker 04:
This is Matthew Earl for International Brotherhood of Teamsters, Local 439.

[00:10:40] Speaker 04:
I'd like to reserve four minutes for rebuttal, please.

[00:10:45] Speaker 04:
The union fully joins in the NLRB arguments with respect to the objections here, which we believe do not have any merit.

[00:10:53] Speaker 04:
And we agree that the order should be enforced as far as the relief sought by the board.

[00:10:59] Speaker 04:
which is a bargaining order beginning on December, I believe it was 6th of 2022.

[00:11:05] Speaker 04:
The union, however, is requesting that you sever and remand for reconsideration on the issue of the date that the bargaining obligation arose in this case.

[00:11:15] Speaker 01:
And... It seems to me somewhat unfair that you would want a date while the company had

[00:11:25] Speaker 01:
objections pending.

[00:11:27] Speaker 01:
And these are, they're not frivolous.

[00:11:29] Speaker 01:
I mean, there are factual facts from which you could argue what they've argued throughout, whether or not any decider has actually agreed with them.

[00:11:40] Speaker 01:
But I honestly don't understand why the union is entitled to, I guess,

[00:11:53] Speaker 01:
a finding that there was an unlawful refusal to recognize and bargain with the union as of the date of the election when they had objections pending all the way through and they weren't rolled on until December 6, 2022.

[00:12:12] Speaker 01:
I mean, I really don't understand why you think you're entitled to a date earlier.

[00:12:18] Speaker 04:
So, Your Honor, if the employer presses objections that are ultimately unsuccessful, then the remedy that we're requesting is the ability for the union to retroactively bargain over that period of, in this case, almost seven months.

[00:12:32] Speaker 04:
I would argue that it's actually unfair to the employees and to the union to lose out on the ability to retroactively bargain as to that period.

[00:12:39] Speaker 01:
What does that mean, retroactively?

[00:12:41] Speaker 01:
What does that mean in practical sense?

[00:12:44] Speaker 01:
that they would, if there is an increase in wages, they would get the benefit of those increased wages during that period of time?

[00:12:52] Speaker 04:
Well, that could be the result, but the basically, I mean, so for example, if you were to enforce the order as the NLRB urges you to here, then that bargaining order is going to be retroactive as December 2022, right?

[00:13:06] Speaker 04:
So retroactive bargaining is already a reality.

[00:13:09] Speaker 04:
And that just means that the employer is required to bargain as to subjects that were relevant as to that period.

[00:13:17] Speaker 04:
And that could look like a lot of different things.

[00:13:20] Speaker 04:
But I would say we would argue that it is not unfair because, again, there's already this retroactivity to bargaining.

[00:13:27] Speaker 01:
And the retroactivity is to date when your rights are clearly established because the board has overruled the objections that were made

[00:13:39] Speaker 01:
by the company.

[00:13:40] Speaker 04:
Yes, but the employer has the right, as they have here, to test the certification and to come to this court to challenge that decision.

[00:13:50] Speaker 04:
And during that time, they're not bargaining with the union.

[00:13:52] Speaker 04:
So I would argue that there's no difference in fairness.

[00:13:55] Speaker 04:
In either case, the employer may press challenges, but the result will be that they'll have to bargain over a different period.

[00:14:03] Speaker 04:
This isn't some kind of

[00:14:05] Speaker 04:
This isn't like a punishment.

[00:14:07] Speaker 01:
This is simply, you know requiring bargaining that will cover the whole period since the employees Seems like it I mean, you're not telling me specifically what the benefit is But you wouldn't be making this argument if there wasn't some benefit to the union for making this argument Yeah, well the benefits are I can name a few so one of the benefits is the right to a representative and

[00:14:29] Speaker 04:
during an investigatory meeting that's a right that only accrues to an employee that's represented by a union under the wine garden decision there's the right to request information so the union has a right to request information covering an earlier period and other other rights like that and so again this this would allow

[00:14:47] Speaker 04:
the union to try to make up for that period of time in which they didn't represent the employee.

[00:14:52] Speaker 04:
It's not a punishment and the parties have to reach an agreement.

[00:14:55] Speaker 04:
There's no agreement compelled under the act.

[00:14:56] Speaker 04:
I'd also point to the statute under Section 9A speaks of a representative that is designated or selected by the employees.

[00:15:03] Speaker 04:
We believe that designation or selection happens on the day of the election that's later found to be valid.

[00:15:10] Speaker 04:
We do not believe that the designation or

[00:15:12] Speaker 04:
or selection occurs on the date that a regional director overrules a challenge.

[00:15:16] Speaker 04:
And Section 8A5 of the Act that speaks of the bargaining obligation refers to Section 9 and refers to 9A.

[00:15:22] Speaker 04:
And so we believe this is the correct reading of the statute as well.

[00:15:27] Speaker 04:
And otherwise, you're depriving employees of their...

[00:15:32] Speaker 05:
Has any circuit adopted this argument?

[00:15:35] Speaker 05:
Where there has been no bad faith during the interim period or no unilateral action by the employer?

[00:15:43] Speaker 05:
Because I don't see any of that.

[00:15:45] Speaker 05:
I don't see any bad faith here.

[00:15:46] Speaker 05:
They just are pursuing their objections, which they believe in.

[00:15:49] Speaker 05:
As Judge Wardlaw said, there seems to be a factual predicate for their objections.

[00:15:54] Speaker 05:
So they're pursuing their objections through the process.

[00:15:58] Speaker 05:
Now, has any circuit

[00:16:00] Speaker 05:
in that situation said, oh, yeah, we got to apply.

[00:16:03] Speaker 05:
We go back to the date of the election.

[00:16:06] Speaker 04:
Not that I'm aware of, Your Honor.

[00:16:08] Speaker 04:
However, currently pending at this circuit is a CEMEX construction materials specific matter in which, and in the underlying board decision that's under your review right now, the board found in a footnote that they explain that under current law, the bargaining obligation begins as of the date of the election.

[00:16:26] Speaker 04:
And so I think in that case is,

[00:16:29] Speaker 04:
subject to your decision, changing some aspects of the selection procedure, but also goes into detail about section nine and about how all of this works.

[00:16:45] Speaker 04:
And we believe that that decision is consistent with what we are urging here, and that decision is recent.

[00:16:52] Speaker 04:
I believe.

[00:16:54] Speaker 01:
Am I hearing you say that the board has internally inconsistent positions on this very issue?

[00:17:00] Speaker 04:
Yes, they do, because under the CEMEX decision, there is a new doctrine that concerns when the union makes a demand for recognition.

[00:17:08] Speaker 04:
That's not in front of you here today.

[00:17:10] Speaker 04:
However, it sets up a way in which

[00:17:15] Speaker 04:
employees may more quickly have a representative, represent them if they have majority and make a demand.

[00:17:21] Speaker 04:
And it also explains how the election process works.

[00:17:25] Speaker 04:
And in so doing, it explains that the date of the election, that the bargaining obligation begins as of the date of the election.

[00:17:35] Speaker 05:
So, you know, I haven't really looked at CEMEX.

[00:17:40] Speaker 05:
Is that what it's called?

[00:17:41] Speaker 05:
Yes, sir.

[00:17:45] Speaker 05:
As I understand the board's law, is that where there's unilateral action during that period, then there might be a basis to go back to the date of the election.

[00:17:57] Speaker 05:
Or as you attempted to argue in one of your briefs, if there's bad faith, that might be a basis.

[00:18:05] Speaker 05:
But your argument about bad faith doesn't work because you didn't raise that before the board.

[00:18:14] Speaker 05:
I mean, I think the board's lies is that you can go back to the date of election if you can hook it on one of those factors.

[00:18:22] Speaker 05:
But, you know, I'd have to read CEMEX to see if it's in the same, along that same line, the board, you know, just adding in another case to that line of... No, Your Honor, I wouldn't characterize it that way.

[00:18:34] Speaker 04:
And I would just say that the, you're right, the employer may not make unilateral changes as of the date of the election.

[00:18:40] Speaker 04:
And we just

[00:18:41] Speaker 04:
think that in a case where the objections are then unsuccessful, that having a retroactive bargaining obligation, again, it's nothing punitive.

[00:18:49] Speaker 04:
It's simply to try to get the employees what they got when they validly selected that representative on that.

[00:18:54] Speaker 05:
But then what you're saying then is that the employer really doesn't have, you know, a right under the process to challenge the election results.

[00:19:03] Speaker 04:
I would disagree with that because, again, the employer has the right to challenge the certification.

[00:19:08] Speaker 04:
That's what they're doing here today.

[00:19:09] Speaker 04:
They have the right to do that.

[00:19:11] Speaker 04:
They just, if they're unsuccessful, if they're unsuccessful, then they have certain obligations to their employees.

[00:19:18] Speaker 05:
And what if they're successful?

[00:19:20] Speaker 04:
And if they're successful, they have no obligation.

[00:19:22] Speaker 04:
They have no bargaining obligation anymore, and so they pay no price for having not met with the union.

[00:19:28] Speaker 04:
OK.

[00:19:31] Speaker 04:
And I would just, again, urge that the

[00:19:36] Speaker 04:
that this court enforce the bargaining obligation.

[00:19:39] Speaker 04:
If you don't find you're able to sever this issue, then we'd rather the order be enforced as is, then have the whole case remanded.

[00:19:46] Speaker 01:
Thank you.

[00:19:47] Speaker 01:
Thank you, counsel.

[00:19:49] Speaker 01:
Mr. Cantor.

[00:19:59] Speaker 00:
May it please the court, Jared Cantor, on behalf of the National Labor Relations Board.

[00:20:04] Speaker 00:
Your honors,

[00:20:06] Speaker 00:
If a picture is worth a thousand words, I would respectfully submit that the video in this case is worth all 9,700 words in our brief directed to the company's challenges.

[00:20:18] Speaker 00:
I think that video plus the documentary and video evidence makes very clear that UPS did not carry its heavy burden of showing that this alleged union misconduct made employee free choice impossible, which is the standard

[00:20:35] Speaker 00:
in this circuit, and therefore it has presented no basis to overturn the board's decision to certify the union, which in this circuit is an abuse of discretion standard.

[00:20:46] Speaker 00:
Unless the court would like to jump to any specific objection, I would sort of like to take the points that seem to interest the panel from my brother at the bar's presentation

[00:21:02] Speaker 00:
The company tries to make this rule here that mere presence outside of this building essentially is objectionable.

[00:21:12] Speaker 00:
And whether it's because of the conversations or the standing around or the two instances where they greeted people by saying hey or hi.

[00:21:22] Speaker 00:
And that simply is not the law.

[00:21:26] Speaker 00:
As we discussed with regards to objection one,

[00:21:30] Speaker 00:
There's this Milcom rule, it's a strict prophylactic rule.

[00:21:34] Speaker 00:
I don't think there's any dispute here really that that is not at issue in this case because that would only apply to the immediate voting room, the break room, or any employees lined up inside the building waiting to go into that room.

[00:21:48] Speaker 01:
So as I understand the facts, at some point the board agent

[00:21:52] Speaker 01:
did come out and ask some union reps to move or something, but had never made it clear before the election began that the parking lot was off limits?

[00:22:09] Speaker 00:
That was a company representative, Your Honor.

[00:22:11] Speaker 01:
OK.

[00:22:12] Speaker 00:
That was not the board agent.

[00:22:13] Speaker 00:
None of these, no concerns, which is one of the factors that the board looks at under the Boston insulated

[00:22:21] Speaker 00:
flexible electioneering standard, none of these complaints were raised to the board agent during voting.

[00:22:28] Speaker 00:
That was a company representative who came outside and asked them to leave.

[00:22:33] Speaker 00:
And essentially that is where the company then goes into this trespassing argument that they were trespassing and

[00:22:39] Speaker 00:
and they cite the plainly distinguishable Phillips Chrysler case, which is discussed in our brief.

[00:22:45] Speaker 01:
Did the union reps leave or move when the company- Yes, Your Honor.

[00:22:49] Speaker 00:
There's no dispute.

[00:22:50] Speaker 00:
They immediately left and stood on the public sidewalk.

[00:22:56] Speaker 00:
So where the company is deriving their arguments on this point in the cases that were just cited are discussed in our brief where we, again, are addressing objection one under

[00:23:09] Speaker 00:
the at or near the polls, no electioneering standard.

[00:23:13] Speaker 00:
And the company relies on cases that, again, we distinguish in our brief, but Pearson education that they try to derive this presence rule from.

[00:23:22] Speaker 00:
In that case, we had an anti-union poster hung up by the employer in the area that had been curtained off for the election.

[00:23:30] Speaker 00:
So employees going to vote and while they were voting were in the presence of that.

[00:23:36] Speaker 00:
I really fail to see how that is this case.

[00:23:40] Speaker 00:
Allianceware is a very specific subset of board law having to do with sound trucks.

[00:23:46] Speaker 00:
And obviously, it's sort of understandable that maybe you do have a designated no-election hearing case, but a union shouldn't be able to do an end run around that by just going a few feet beyond that and blasting a sound truck for five hours.

[00:24:01] Speaker 02:
alliance where again you don't have a sound truck here we don't have five hours of electioneering being broadcast um I that has if I if I can interrupt you here have a more general question and this may just betray my infamilarity with labor law but I mean our board opinions typically this short and terse they're like three to four pages long like milk and Boston insulated well partly your honor those are

[00:24:32] Speaker 00:
older board decisions, board decisions do tend to vary in length.

[00:24:37] Speaker 00:
And obviously in these type of cases in particular, there's sort of a layer of board decisions because you have the initial hearing officer's decision.

[00:24:48] Speaker 00:
If there are exceptions to that, the regional director will weigh in and sometimes add or subtract from that analysis.

[00:24:56] Speaker 00:
If there's a request for review,

[00:24:58] Speaker 00:
from the regional director's decision, the board will add on.

[00:25:02] Speaker 00:
So that's, if I will, if I may, that keeps me employed as sort of weaving together multiple documents presenting the agency's ultimate decision.

[00:25:13] Speaker 00:
But that is pretty common, especially in these cases that are called technical 885s.

[00:25:17] Speaker 00:
They are very short because the board's relying on all of the decisions from the underlying decision makers that it's adopting.

[00:25:24] Speaker 02:
And I guess that's, you know, my concern is these opinions, board opinions, are so short.

[00:25:29] Speaker 02:
They barely have any analysis.

[00:25:32] Speaker 02:
And I think often they seem contradictory to each other, and it's really hard to figure out how to reconcile some of these cases.

[00:25:39] Speaker 02:
I'm sure you could probably say the same thing to about nine circuit opinions, but at least they're

[00:25:44] Speaker 02:
They're fairly long.

[00:25:45] Speaker 02:
There's a lot of analysis and, you know, lawyers who get paid good money can figure it out and point out and reconcile them.

[00:25:50] Speaker 02:
But here, like, Milk Him and Boston Insulated, I just don't, you know, I find it hard to

[00:25:56] Speaker 02:
differentiate between them, because Milken, which I assume is the seminal case, says no electioneering because you need peace and quiet.

[00:26:04] Speaker 02:
It's like a typical political election.

[00:26:05] Speaker 02:
You don't want people bothering you just as you're about to vote.

[00:26:10] Speaker 02:
And you look at elections here in California, there's 100 feet rule before the election.

[00:26:15] Speaker 02:
Then you look at Boston Insulated, they kind of change it and say, well, there was a door, so that's good enough.

[00:26:21] Speaker 02:
I mean, I don't know how you reconcile it.

[00:26:23] Speaker 02:
It's just the board, just ad hoc, making distinctions.

[00:26:26] Speaker 02:
I don't know.

[00:26:26] Speaker 02:
Maybe if it's a curtain, it would be a different rule instead of a door.

[00:26:29] Speaker 02:
Maybe I just, it's hard to make sense of all of this.

[00:26:32] Speaker 02:
And this goes back to the question I asked your other counsel.

[00:26:36] Speaker 02:
I mean, I guess it seems like it's unsettled.

[00:26:40] Speaker 02:
And maybe it wasn't raised here.

[00:26:42] Speaker 02:
But, you know, whether it's low or bright applies.

[00:26:43] Speaker 02:
Because it really, I had a hard time trying to reconcile all these cases, especially given how short they were.

[00:26:50] Speaker 00:
Well, Your Honor, certainly Loper-Bright is not litigated in this case.

[00:26:56] Speaker 00:
Speaking extemporaneously on that question, I think the board in this case is applying well-established jurisprudence.

[00:27:04] Speaker 00:
It's Boston insulated analysis, the Milcom rule here.

[00:27:10] Speaker 00:
And so I don't think the board is engaged in any type of statutory interpretation that is the basis of the overruling of Chevron.

[00:27:21] Speaker 00:
But those two rules, they do serve sort of different purposes.

[00:27:25] Speaker 00:
Again, because Milcom is a strict rule that's not even really about electioneering.

[00:27:31] Speaker 00:
It prohibits any prolonged or sustained conversations with voters essentially in those final moments.

[00:27:38] Speaker 00:
And that's why it is such a strict prophylactic rule.

[00:27:41] Speaker 00:
As long as it's a prolonged or sustained conversation, doesn't matter what it's about,

[00:27:47] Speaker 00:
that would be a basis for then overturning an election.

[00:27:50] Speaker 00:
It's a very strict rule and it's of course then very limited.

[00:27:53] Speaker 00:
The voting room itself or employees in that final line going in.

[00:27:59] Speaker 00:
Boston insulated of course then is broader than that.

[00:28:03] Speaker 00:
It's aimed at specifically then electioneering, not just any type of conversations.

[00:28:08] Speaker 00:
It has to be electioneering.

[00:28:10] Speaker 00:
And that is then applying multiple factors to look at

[00:28:14] Speaker 00:
whether alleged electioneering was sufficient to warrant an inference that there was an interference with employee free choice.

[00:28:22] Speaker 00:
And so that is not a strict prophylactic rule because you're gonna look at the nature and extent of the alleged electioneering.

[00:28:29] Speaker 00:
So it has to be electioneering, not just conversations, whether it's by a party or by an employee, if it did occur in a no electioneering area or if it contravened any board agent instruction.

[00:28:42] Speaker 00:
And certainly,

[00:28:44] Speaker 00:
The company has not challenged any of the board's sort of analyses in this case in the sense of Boston insulate is a bad test or is contrary to the act or anything like that.

[00:29:00] Speaker 00:
I do want to be respectful of the panel's times if there's no questions.

[00:29:04] Speaker 01:
I have one question.

[00:29:06] Speaker 01:
Does CEMEX, which we haven't looked at, was raised for the first time here today, does it hold that simple refusal to initiate collective bargaining pending board resolution of timely filed objections is a per se violation of Section 8A5?

[00:29:26] Speaker 00:
No, it does not, Your Honor.

[00:29:27] Speaker 01:
Okay, because my understanding is there's no board case that has ever held that.

[00:29:33] Speaker 01:
Unless you show bad faith.

[00:29:35] Speaker 00:
Yes, Your Honor.

[00:29:36] Speaker 00:
The union here, and again, in our brief, we make a jurisdictional bar argument.

[00:29:42] Speaker 00:
The union here is trying to essentially ask the court to do away with the board's longstanding jurisprudence that is typically called the Howard plating decision, and that is

[00:29:57] Speaker 00:
essentially what was talked about in the prior part of the argument, that post-election, but pre-certification, so while an employer is exercising its rights to file an objection, as long as an employer essentially maintains the status quo, a simple refusal to bargain during that period is not a violation.

[00:30:18] Speaker 00:
They certainly might have an obligation, which is why the board's Mike O'Connor jurisprudence says you act at your peril during this period.

[00:30:27] Speaker 00:
But at least until the board issues that certification, which essentially finally puts you on notice that your challenges have no merit according to the board, during that period, it's sort of like a safe harbor.

[00:30:39] Speaker 00:
Maintain the status quo.

[00:30:42] Speaker 00:
They certainly are free to, of course, go bargain, but there's no violation at that point if they want to exercise their right to pursue their objections.

[00:30:52] Speaker 00:
Upon the issuance of the certification,

[00:30:55] Speaker 00:
then depending on if the union has asked for bargaining yet or does afterwards, that will then be the date of the violation.

[00:31:01] Speaker 00:
And then at that point, the union can then file an unfair labor practice charge with the board.

[00:31:06] Speaker 00:
And as the court may know, that will then lead to a board order that is reviewable in court.

[00:31:11] Speaker 05:
So then what's the context of CEMEX?

[00:31:16] Speaker 00:
So CEMEX is the board's new standard in a very specific area.

[00:31:25] Speaker 00:
SEMEX concerns remedial bargaining orders where an employer is first presented with a request from a union to voluntarily recognize it.

[00:31:38] Speaker 00:
And in that case, before an election is held, because the employer in that situation still has the right to say, well, I'd like to go to an election, the employer commits violations before there is an election,

[00:31:54] Speaker 00:
and the board in this new CEMEX decision has basically decided that in that situation, those unfair labor practices after the request for recognition, but before the election, taint the election, we will require you to bargain.

[00:32:10] Speaker 00:
We won't have a rerun election free from taint.

[00:32:13] Speaker 00:
And in that specific instance, the bargaining obligation will go back to the date when the union requested recognition.

[00:32:24] Speaker 00:
It's a very different area.

[00:32:25] Speaker 00:
It is a very new standard.

[00:32:27] Speaker 00:
It is obviously currently being contested before this circuit.

[00:32:32] Speaker 00:
But SEMEX has nothing to do with the Howard plating.

[00:32:38] Speaker 00:
Simple refusal to bargain is not a violation.

[00:32:40] Speaker 05:
And that's this case?

[00:32:42] Speaker 00:
That is this case.

[00:32:43] Speaker 00:
This is a Howard plating type case.

[00:32:46] Speaker 00:
That the date of the violation will not

[00:32:50] Speaker 00:
come into effect until the certification has issued.

[00:32:53] Speaker 00:
And again, as we pointed out in our brief, the union before the board and its opposition to the company's motion for reconsideration essentially just said, they tried to make this into a Mike O'Connor case that the company had somehow had acted at its peril.

[00:33:15] Speaker 00:
And for that reason, the date should be moved up.

[00:33:18] Speaker 00:
and there simply is no evidence in this case that the company has done any of those things.

[00:33:24] Speaker 00:
It has acted consistent with Howard plating, refused to bargain until the certification, and therefore that's the date of the violation.

[00:33:34] Speaker 01:
Okay.

[00:33:34] Speaker 01:
All right, thank you.

[00:33:35] Speaker 00:
If there are no further questions, the board requests that its order be enforced, and I thank the panel for being allowed to appear remotely.

[00:33:41] Speaker 01:
All right, thank you very much.

[00:33:44] Speaker 01:
LRB versus UPS supply chain solutions will be submitted.

[00:33:49] Speaker 01:
This session of the court is adjourned for today.

[00:33:51] Speaker 01:
And we will be meeting with those in high school.

[00:33:55] Speaker 01:
Perhaps our law clerks can keep them entertained for the next 15 minutes.

[00:34:00] Speaker 01:
But we'll probably start earlier than 1130.

[00:34:01] Speaker 01:
Okay.

[00:34:03] Speaker 01:
Thank you.