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Case number 11-1267 at L, Alden Leeds, Inc.

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Petitioner versus National Labor Relations Board.

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Mr. Farinzo for the petitioner, Mr. Barrett for the respondent.

[00:00:26] Speaker 03:
Good morning, Your Honors.

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Mr. Corr.

[00:00:28] Speaker 03:
Good morning.

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This appeal presents a relatively simple issue I would submit to the court.

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The period from September 30, 2009 through October 3, 2009, when the lockout in this case commenced, there is no dispute.

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It is confirmed by fact findings of the ALJ and the board below.

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that the position of the petitioner, Olden Leeds, consistently was, given the economic turbulence that existed in America at that time, that it would do nothing more and nothing less than extend the terms and conditions of the contract that had expired for a period of one year.

[00:01:12] Speaker 04:
That seems relatively clear right up until the email of the 13th.

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Correct.

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Why don't we just focus on where the... Very well.

[00:01:21] Speaker 03:
I'll get right to the heart because that's the crux of this case.

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We submit to the court that the determination here by the ALJ and ultimately adopted by the board

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completely misconstrued and did not understand certain basic underlying facts set forth in that October 30th email.

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So here's the state of the record, and this is not disputed.

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The ALJ found, this is at JA25,

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that on October 30 Epstein, the president of Golden Lead, had a telephone conversation with Tricoli, the union negotiator, and at that time it was clear, and he found as a fact, that Epstein conveyed, quote, I don't want to pay any more, I want to keep everything the same for one year.

[00:02:05] Speaker 03:
That telephone conversation occurs between the two of them on October 30th.

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Before the email was sent.

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before the email is sent.

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That's fair, although I would submit to the court that in understanding the email, it has to be placed in context.

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And the context is what occurred during those discussions that day.

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So they have the conversation.

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He makes it clear, as he had throughout the preceding month, that there would be no change in the position.

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Everything would remain the same.

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There would be a, quote, freeze.

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The email then comes that afternoon.

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And in the findings of the ALJ adopted by the board,

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This is the basis for the entirety of their claim and the finding that there was some confusion with regard to the offer.

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The email, which is at JA-64, does the following.

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It makes claim.

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It confirms the course of the discussions over 30 days.

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Provides that during the 30 days since the agreement between the parties,

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expired we have the company to try our best to come up with an alternative medical plan that would cost the same or less than the proposed increase for the union plan.

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Let me make plain as the record does, as of this date the expiring contract as set forth in

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the record below, and again, this is undisputed, the company was paying $20,000 per month in medical contributions to the union, which accepted those monies and then utilized them for a union-controlled insurance plan.

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At this time, Alden Leeds, when they sent this email, was confirming that back on October 22, reflected in JA119,

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There was a letter of email from Epstein to the union stating, we're spending $20,000 a month.

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Your offer of September 30 proposed to increase our health care contribution to $35,000 a month.

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We will not do that.

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But what we will do, we'll pay the continued amount of 20.

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And all that was happening is Epstein and the company were suggesting to the union that if you go outside your own captive plan, there are ways you can take the $20,000 that we will continue to pay under our proposal, and you can buy another policy which will provide different and better and more coverage.

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So as of the date of the email, JA64, Epstein is doing nothing more than confirming the conversation that he had with Tricoli

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in which he says, we tried our best for 30 days.

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We sent you these plans, evidenced by JA119, the proposal with all these different options they could consider.

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And he says, our best efforts result in a plan that, one, requires medical interview, two, does not include dental, three, does not include optical, four, did not cost less than the expiring plan.

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However, we're

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If we were to eliminate family coverage and go to single coverage for all union members, it would cost less and therefore there would be a saving.

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So if we pay you the $20,000 per month, which is the freeze, which had always been their position, and you go ahead and you change your plan from the union controlled plan to a private plan, you can benefit your members to the tune of about $400 a month, because we're going to continue to pay the same thing no matter what.

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He goes on to confirm that in that conversation, that very day, October 30th, as confirmed in the record, as confirmed in the fact findings by the ALJ, that quote, John Tricoli stated that he had been unaware of this option, but regardless, that the union will keep the existing plan.

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The union was unwilling to move from the union controlled plan to consider taking the $20,000 and buying private plans that might afford better coverage.

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So this email does nothing more at this point than confirm the conversation of the 30th that the union had rejected this concept of taking the 20,000 per month, which had always been the company's position, never changed, never wavered.

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But the ALJ and the board interpreted this email as creating an ambiguity, because it mentioned the other plan.

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Yes, yes, your honor.

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And for you to win here, you have to convince us that that finding is patently unsupportable.

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Not just that you disagree with it.

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As I understand it, my burden is to show that there is

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that there is not substantial evidence to support that finding.

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That's the standard of review as I understand it.

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And so the substantial evidence, this is the email.

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We can read the email, and I don't think this court or anyone is bound by an interpretation of the email that may be made by someone else.

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This email says what it says.

[00:07:14] Speaker 05:
Wait, wait, wait.

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Sure we are.

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Excuse me?

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We don't do that, De Novo.

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We look to see whether or not, pursuant to the substantial evidence test, the board and ALJ's interpretation is satisfactory, not whether we would have come to a different interpretation than they did.

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The substantial evidence in the record consists not only of the email, but we also have fact findings of the ALJ, and these fact findings include the finding that – and this is a JA-23 – that on November 2, when Union President DeVito then asked about this email, they

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were considering what to do with this proposal.

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At that time, they asked Cunningham for a summary of the developments, and they confirmed at JA23, the fact-finding, that the company had proposed to get a freeze.

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There was no dispute from the testimony on the record that when they discussed this after the

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offer came in, they knew exactly what the position was.

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They read it, they understood it, they never sought clarification, and when they discussed it internally, they confirmed and agreed that it meant nothing more or nothing less than what had been the position since September 30th, there would be a freeze.

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Where's that?

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This is at...

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in light of this email.

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So tell me what you're referring to.

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I'm referring to JH-23, which is a fact-finding of the ALJ, which it provides and states that the union president, DeVito, asked Cunningham after the offer came in from Alden Leeds for a summary, and he said that the company again proposed a freeze.

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They knew exactly

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This is on line five, JA-23.

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Similarly, when DeVito asked Cunningham on November 2nd for a summary of developments in negotiations, Cunningham informed them, responded and proposed a freeze.

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They knew exactly what the proposal was.

[00:09:19] Speaker 05:
Well, keep reading the paragraph.

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There's much more to the findings.

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The ALJ is saying they were confused.

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They weren't sure.

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One year, two year, and they weren't sure what the company was proposing.

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The ALJ- He was confused about the meaning of the email.

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which is certainly not the height of clarity.

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The ALJ finds that, but that I would submit to the court, there is not substantial evidence in the record to support that, because contemporaneously, when it came in and they discussed it, they knew it was a freeze.

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They confirmed it was a freeze.

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He made a fact finding that they discussed on November 2nd that it was a freeze.

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They never asked for a clarification with regard to this.

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It says, in fact, that it is a freeze.

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After discussing the health care proposal and confirming that it had been rejected by the union, at that point in time, they go on to say,

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We propose and continue a freeze, one year or two years.

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You choose.

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There was absolutely no ambiguity based upon the admissions of the union from their internal discussion and otherwise as to what that email meant.

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And there had never been a change from the company from September 30 onward.

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And then, of course,

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A week later, when there were further discussions and even made clear, they again rejected on November 9, with respect to the further proposal that was made, even after the lockout began.

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But I see my time is up.

[00:10:49] Speaker 02:
Yes.

[00:10:51] Speaker 02:
OK, thank you.

[00:11:09] Speaker 00:
Pardon me.

[00:11:10] Speaker 00:
May I please the court?

[00:11:11] Speaker 00:
Good morning.

[00:11:11] Speaker 00:
My name is Jeff Bird.

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I'm here on behalf of the National Legal Relations Board.

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Your Honors, the board found that this October 30 email was, quote, confusing, incomplete, and internally inconsistent.

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Further, the board credited the testimony of union representatives Cunningham and Chockley that they were indeed confused by what exactly the company was offering.

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This was made manifest in earlier in the day on October 30th when Epstein raised this issue of didn't the union state that it was going to take the company's offer to its members and have a vote.

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This being the first track we had heard of this, he asked astutely, vote on what?

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It was unclear at that point.

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There's credited testimony.

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There's been no showing that that credibility finding should be overturned or that the company can meet the high bar to overturn that.

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Now, the company's offer on October 30th stands in very stark contrast to the first clear offer that it made to the union, which was on November 9th, one week after the unlawful lockout began.

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The board found that that was the first time a clear offer was made, and a review of that document at JA123 illustrates precisely what the company is obligated to provide to the union, which is clear terms of what is being offered.

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This varies

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substantially from what had been discussed throughout the month of October and varied from what was in that October 30th email.

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And it was this that was put the union and its members on notice of what type of proposal they would need to accept in order to avert the lockout.

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Unfortunately, for the company, this offer came too late to – or it was not able to cure the unlawful lockout with just this notice.

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It was obligated to return the employees to the status quo by reinstating them, paying them back – or bringing them back to work, ending the lockout, paying them back pay, and resuming negotiations.

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The company had every opportunity at that point to resume the lockout had it done those things, but it did not.

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So the board maintains that the record is, despite the company's best efforts throughout its briefs and its argument to show that this October 30 email was clear, it was anything but, and substantial evidence supports that finding.

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We also, I would, just a few additional notes.

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I think this was made clear, but this is not a de novo review standard.

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This is not a collective bargaining agreement that the parties were asking the board to interpret.

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This is an email in the course of dealings over the course of a month.

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So under Litten, under clear precedent, this is not to be given de novo review.

[00:13:44] Speaker 04:
As far as the- Let me just ask you, Pete, what is the significance of the November 9

[00:13:51] Speaker 00:
Well, after the lockout began on November 3rd, the parties continued, negotiations might be a bit strong at the turn, but continued discussing the matter.

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On November 9th, the company provided this, what it termed, final offer to the union, laying out these terms.

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So that is something that the union can take to its members and vote on in a clear manner in order to avert the lockout had it been given in advance of the lockout.

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But it wasn't.

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It was the first time the employees were put on clear notice as the board found of precisely what the company was seeking.

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So as far as the case is concerned, this is a strong illustration.

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It's not a hypothetical, as the board found.

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It's an illustration of what is a clear offer made to the union, but it was given after the lockout.

[00:14:37] Speaker 04:
So you just might as well have drawn examples from other cases.

[00:14:41] Speaker 04:
I mean, we certainly could have tried to dig through other cases, but given the facts of this case.

[00:14:59] Speaker 00:
Well, I believe it contrasts the October 30th email.

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It shows, it tells the employees what type of health benefits they would be voting on.

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It tells them what they would be paying for it, how the division of those contributions were being made.

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And I'll note at the end of this, to show that this was indeed a moving target the company was providing, there is for the first time a discussion of the ability to withdraw from the union's pension fund.

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So this is an illustration of what the board found was a clear notice to the union, whereas in October, on October 30th, again, inconsistent, confusing.

[00:15:30] Speaker 00:
This is credited testimony of the union representatives and is supported by a reading of this email.

[00:15:37] Speaker 00:
It mentions staying with the same plan, but it also mentions the possibility of eliminating family coverage.

[00:15:42] Speaker 00:
That's not a freeze from what happened in the past.

[00:15:44] Speaker 00:
That's a reduction in the benefits that were offered to the employees.

[00:15:49] Speaker 04:
This might be different than the offer of October 3rd.

[00:15:57] Speaker 00:
It doesn't really bear on us.

[00:15:58] Speaker 04:
It isn't really relevant.

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The question is whether October 30th is clear.

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This could be offering

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the same terms in a more clear fashion or different terms, and the fact that they're different seems to me not to be relevant at all.

[00:16:15] Speaker 00:
Okay, I was using it by way of illustration, but it does not change, of course you're correct, it does not change the fact that of what the October 30th email says.

[00:16:23] Speaker 00:
I was using it as illustration, but I think this standing alone

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looking alone at the October 30th email, it is clear that it does not provide a notice that can take back to the union.

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And again, it's properly asked, vote on what, what exactly are we telling the employees that they're going to be getting under this plan?

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Will they be getting $400 a month for the employee?

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What type of benefits are going to they, will they receive under the insurance plan?

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I'll note that there were many discussions about a one-year freeze.

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This offer discusses a one-year freeze on wages, a one- or two-year freeze on wages.

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It doesn't say anything about the union's other various contract proposals.

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Those were not addressed.

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The company would have this court, I believe, infer that the freeze would have extended to those other terms, but that's not what this says.

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This says that it discusses the wages.

[00:17:09] Speaker 04:
So, at that point, to suggest that the union members would have known what they were voting on in order to avert the lockout, the board found that this was not sufficient.

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is that the employer wanted a freeze across the board, didn't want to have to pay any more than it was currently paying, even if the mix of medical benefits was different.

[00:17:43] Speaker 04:
So when it later, in October 30, refers to wages,

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I don't see how that really casts any doubt on the employer's position with respect to the other terms.

[00:17:54] Speaker 04:
I've been saying it all along.

[00:17:56] Speaker 00:
Well, I mean, it's – unfortunately, I don't have the record cite to this, but there were – it is in the record in the Joint Appendix, the other proposals that were offered by the union, that some were non-economic proposals.

[00:18:06] Speaker 00:
I mean, these are all things that have to be bargained, and it was not made clear that a freeze would extend to those other terms when it specified wages.

[00:18:13] Speaker 04:
Well, that's the term the employer had never responded.

[00:18:15] Speaker 04:
Isn't that correct?

[00:18:16] Speaker 00:
That's correct.

[00:18:16] Speaker 00:
I mean they hadn't been negotiated over these other terms.

[00:18:19] Speaker 04:
It was.

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There have been previous discussions earlier in October to that effect.

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However, over the course of that month, there were different medical plans.

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They were moving from a union-sponsored plan to a company-provided plan.

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There was discussions with the broker.

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There was a great deal of uncertainty that was injected into the process that is illustrated in this October 30th email.

[00:18:53] Speaker 00:
It the board has not interpreted this in a vacuum as the company has suggested however when it came to decide on that in October October 30th when properly informed Epstein I don't know what you want them to vote on this was his response

[00:19:10] Speaker 04:
board enumerated as illustrating confusion or lack of clarity was the one versus two years.

[00:19:17] Speaker 04:
That's not really a problem, is it?

[00:19:20] Speaker 00:
No, it's not.

[00:19:21] Speaker 04:
The board does... You say, here's our proposal for either one year or two years.

[00:19:25] Speaker 04:
They can vote on that.

[00:19:26] Speaker 00:
Well, the board, in fact, did not rely on that.

[00:19:27] Speaker 00:
The ALG did, but in the board's, I believe, it's put note three.

[00:19:30] Speaker 00:
They stepped back from that finding.

[00:19:32] Speaker 00:
So, no, we're not maintaining that that was part of the handyman.

[00:19:37] Speaker 00:
With just a minute left, I would just briefly address the issue of the remedy.

[00:19:43] Speaker 00:
There's been a great deal of argument in the briefs, although not yet this morning, about whether or not a portion of this case should have been deferred to the board's well-established compliance proceeding on the issue of whether that November 9 email

[00:20:00] Speaker 00:
not only cured the unlawful taint created by this unlawful lockout, but whether or not there was an adverse impact on ongoing bargaining.

[00:20:11] Speaker 00:
The company has the opportunity to meet a burden of showing that there was no adverse impact by the nature of the unlawful lockout.

[00:20:18] Speaker 00:
And if that's the case, a cure would

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and the company's liability.

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And the company has gone to great lengths to suggest that this is a matter based on one board case, or a footnote on a board case, that this is a matter that should have been deferred to compliance.

[00:20:32] Speaker 00:
This is a straightforward application of 10E, of 29, 160E of the...

[00:20:37] Speaker 00:
that they had the company and the obligation to raise this matter before the board.

[00:20:42] Speaker 00:
It failed to do so.

[00:20:43] Speaker 00:
It was on notice from the ALJ's administrative law judge's decision that there was no such finding that it met its burden to the extent that there was any, you know,

[00:20:53] Speaker 00:
uncertainty about when the company was obligated to raise this uncertainty was dissolved when the board stated in its footnote to its decision that no further litigation was warranted in this case because the matter had not been properly raised the company then continued to sit on its rights it did not file a motion for consideration with the board and as a result we would maintain

[00:21:15] Speaker 00:
that Trump plows on which it relies is distinguishable, and the court's many decisions, including all in manufacturing and a recent decision in the Health Bridge case last month, clearly established that Tenney does create a bar to those arguments.

[00:21:30] Speaker 00:
And I see that I'm out of time.

[00:21:31] Speaker 00:
Yeah.

[00:21:32] Speaker 02:
Thank you.

[00:21:33] Speaker 02:
Thank you, Your Honor.

[00:21:35] Speaker 02:
Mr. Firenzeau, I think you're out of time, but you could take a minute if you'd like it.

[00:21:39] Speaker 03:
Thank you.

[00:21:42] Speaker 03:
one or two points.

[00:21:43] Speaker 03:
The argument was just made a moment ago about there were changing positions prior to October 30.

[00:21:50] Speaker 03:
The testimony of Mr. Tricoli, which is a JA-236

[00:21:56] Speaker 03:
when he discusses with Epstein where the negotiations are at, they discuss the health care will remain at the same, quote, contribution level, which will result in a cut in benefits.

[00:22:08] Speaker 03:
And when that's discussed, the question is, quote, and what, if any, response does Mr. Epstein give to that answer?

[00:22:16] Speaker 03:
Mark said once again, you don't understand.

[00:22:18] Speaker 03:
I just want to keep everything the same.

[00:22:21] Speaker 03:
I don't want to pay anything more.

[00:22:24] Speaker 03:
I don't want to, you know, I want to keep everything the same for one year.

[00:22:29] Speaker 03:
That position never changed.

[00:22:31] Speaker 03:
They knew it on October 30, and the October 30 email confirms that.

[00:22:37] Speaker 03:
It says exactly that.

[00:22:38] Speaker 03:
There's a freeze in place.

[00:22:40] Speaker 03:
There was no ambiguity, these facts were well known, and there was never a question about it.

[00:22:45] Speaker 03:
So with regard to the October 30 email, when we look at it in the context of the admissions in the record, which were disregarded and ignored by the ALJ, I believe the conclusion of this court should be that there was no ambiguity concerning the position, that the union knew what to do to avert the lockout, which was simply

[00:23:06] Speaker 03:
same terms and conditions that existed under the agreement as was made plain throughout.

[00:23:10] Speaker 03:
Thank you.

[00:23:11] Speaker 02:
Thank you.

[00:23:12] Speaker 03:
Case submitted.

[00:23:13] Speaker 03:
Thank you both.