[00:00:01] Speaker 00:
Case 12-1032, et al., Dodge of Naperville, Inc.

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and Burke Automotive Group, Inc., doing business as Naperville Jeep Dodge petitioner versus the National Liberal Relations Board.

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Mr. Hedricks for the petitioner, Mr. Callahan for the respondent.

[00:00:24] Speaker 04:
Good morning, and may it please the Court.

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My name is James F. Hendricks, Jr., and I represent Dodge Naperville and Naperville Chief Dodge.

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We are the petitioners in this matter.

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And I'd like to give the Court a little background to how this all evolved and why we're here before you today.

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This goes back to when Chrysler Corporation went into bankruptcy, and they vowed that they would be chopping down the total number of dealerships in the United States.

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In the process, my client, Ed Burke, had two dealerships.

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One sold exclusively Dodge products, which was in Naperville, Illinois.

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And in that particular dealership, he had six unionized technicians.

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He had one other dealership in the adjoining suburb called Lyle.

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In that facility, they sold both Dodge and Jeep vehicles.

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In that facility, they had 14 non-union technicians.

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When Chrysler gave the word to Ed Burke to close one of his dealerships, he implored them to keep the one that had the most employees and the most products that he could sell, which was the Lyle dealership.

[00:01:30] Speaker 01:
In the process... Can I ask you at the Lyle dealership, have they ever had a unionization vote at all?

[00:01:36] Speaker 04:
No.

[00:01:36] Speaker 01:
No.

[00:01:38] Speaker 01:
And then, can you tell me, do we know now how many of the original Naperville mechanics that moved over

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Lyle are still there?

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Four.

[00:01:49] Speaker 01:
Four are still there.

[00:01:51] Speaker 04:
Thanks.

[00:01:53] Speaker 04:
At any rate, when the bankruptcy court instructed him to close his one dealership, rather than just laying off the employees, he offered them all jobs at his other dealership.

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Four of the six accepted those jobs, and they're still there today.

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When these technicians went over to the other dealership, it was a fate at complete because Chrysler had closed.

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You could not sell a vehicle out of the Naperville facility or service them under warranty because that's what the franchise agreement calls for.

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When the individuals, the remaining people from Naperville went over to Lyle,

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They worked side by side, stall if you will, by stall, next to the 14 non-union people.

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They were under the same supervision, the same roof as the 14 people.

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So we had, essentially, the numbers are 30% were former union people, 70% were non-union.

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So why isn't this just a transfer?

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A transfer?

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Yeah.

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Because if it were a transfer, the entire body of people in that dealership would have gone over there.

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If they didn't, the only people that went were six people.

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That was the totality of the people for the Naperville store that went to Lyle.

[00:03:07] Speaker 01:
So when they... Was there ever a fact finding as to when the...

[00:03:14] Speaker 01:
integration happened what day because it seemed like there was no you'll have to reapply and then it wasn't applied a service gave them the jobs and it seemed to trickle in over about the course of the week maybe it was a separate corporation so yes and fill out an application for that separate corporation but what is there a finding or do you have a position on what the day of integration was it was it it would have been the following monday the nineteenth

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The 19th of June in 09 was when they were told to close that dealership.

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Saturday morning, the technicians were called to come to the dealership and pick up their toolboxes.

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They have very large toolboxes.

[00:03:54] Speaker 01:
I'm sorry, was it 19th of Friday?

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The following Monday, they reported to work at... 19th was which of those days?

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Friday, Saturday?

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19th was Friday.

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Saturday was the 20th.

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On the 22nd they reported to work at the Lyle dealership.

[00:04:06] Speaker 01:
And in your view that's the date of integration.

[00:04:08] Speaker 04:
And what?

[00:04:09] Speaker 01:
That's the date that they integrated the two.

[00:04:10] Speaker 04:
Yes it is.

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And it was a complete integration.

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There was nobody left.

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As I indicated to you, the dealership had no advance notice from Chrysler.

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They were called the afternoon of the 19th and said, close the dealership, start selling out of the other store now.

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There were two franchises involved, and that's why it's the franchise issues that get involved with where you can and cannot sell these particular vehicles or service on warranty.

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So rather than laying them off, Ed Burke hired them all at his new store or offered employment to all of them at the new store at the old Delisle facility.

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In this particular case, the Board has only looked at the history of bargaining.

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They ignored the accretion of this group into the two units.

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They completely ignored the community of interest factors that were there and the majority representation issue because, according to the National Liberations Act, which has been around since 1935,

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In order to have recognition of a union, they have to represent 50% plus one, if you will, a majority.

[00:05:16] Speaker 02:
What's your authority that this wasn't a transfer because even though all of the mechanics transferred over, the other employees like salespeople, et cetera, did not?

[00:05:31] Speaker 04:
With all due respect, Your Honor, it wasn't a transfer.

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They applied and were given jobs at the other corporation.

[00:05:37] Speaker 02:
Well, I asked you earlier whether it could be treated as a transfer, and your answer was no, because not all of the employees went over.

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That was the reason you gave it.

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Meaning salespeople, office clericals, everybody else.

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So is that the reason it's not a transfer, or is the reason it's not a transfer because you say they applied for it?

[00:06:01] Speaker 04:
Those are the reasons it's not a transfer, in my opinion.

[00:06:05] Speaker 02:
Well, how is it that?

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They applied for other positions when their employment was continuous and the two people who didn't move over to the Lyle facility applied for unemployment and your client opposed that.

[00:06:30] Speaker 04:
Yes, they were offered jobs.

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They had valid job offers and chose to go for unemployment when, at the time of the hearing before the ALJ, they still weren't employed.

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They had bona fide job offers doing the same job in a different facility.

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The same job under different conditions?

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Yes.

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Totally different conditions.

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First of all, it's a nine-unit shop.

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They had different supervision, different building.

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So all of the community of interest factors that the board normally considers were there.

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Similar skills, highly skilled people, by the way, functional integration within one facility.

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The supervisory organizational structure was different in that facility.

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The one factor that the board chose to focus on was history of bargaining.

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Well, that belies the fact, but any time you have an integration of a non-union shop and a union shop, you're going to have a history of bargaining.

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Well, what do you say about, do you think that there

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wrong on the law that when there's a history of bargaining it requires compelling circumstances.

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You have a different conclusion.

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Do you think that test is wrong?

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I think it's wrong not to look at the community of interest.

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They only focus on history of bargaining.

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That's not what they said.

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They said that they agreed that the others were important, but that where you have a history of bargaining, you have to have a compelling circumstance.

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That's the other way, right?

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Correct.

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And you agree that that is the test, that where there is a history of bargaining.

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I don't believe that that should be the only test, and that's how they treated it.

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They didn't say that.

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Let me just ask again.

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You agree that the test is that where there is a history of bargaining, the board puts heavy weight on that and requires compelling circumstances to overcome the significance of that history.

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You agree that is the test?

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I do.

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That is the test.

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They said they were applying.

[00:08:33] Speaker 04:
Yes, but they didn't.

[00:08:34] Speaker 05:
I understand.

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So I'm just trying to make

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This is not a case about the wrong test.

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This is only a case about the way in which the test is applied in this circumstance.

[00:08:45] Speaker 04:
Yes.

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And Your Honors, all of the cases cited by the Board are totally inopposite to what actually happened here.

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They rely on Comair and some other cases that factually have nothing to do with what took place here.

[00:09:00] Speaker 01:
I'm going to follow up on the question you were just asked.

[00:09:02] Speaker 01:
I guess this gets to be a fine distinction sometimes.

[00:09:07] Speaker 01:
Is your position that you just don't like how the test was applied to these facts, or that the test was changed to eliminate any sort of causal connection between the finding of an unfair labor practice and the prospect that there would have been two separate communities of interest, or that they would not have been integrated?

[00:09:27] Speaker 04:
They changed the test.

[00:09:29] Speaker 01:
And what evidence is there in the record that if you had done, let's assume you had, I know your position is that you didn't, but assume you had the duty to engage in effects bargaining.

[00:09:45] Speaker 01:
What is your answer, I guess, to their argument that that effects bargaining would have included these terms and conditions that you now say were all the same, so we just can't tell whether they would have been the same if you had done the effects bargaining you were supposed to have done?

[00:10:00] Speaker 04:
I think their position totally ignores the authority that's out there.

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For example, they ignored transmaring, which tells you the effects of not participating in effects bargaining.

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There's a limitation on that.

[00:10:13] Speaker 01:
The fact that... Can effects bargaining include wages and conditions of employment at the new location?

[00:10:20] Speaker 04:
No, I don't believe it had anything to do with the employment at the new location.

[00:10:24] Speaker 01:
I'm just asking you whether that's something that effects bargaining as a matter of laws allowed to encompass?

[00:10:29] Speaker 04:
No, in my opinion, the effects of bargaining has to do with what happened at that point in time.

[00:10:38] Speaker 01:
Part of what happened at that point in time was how they came to the terms on which they came to work at the Lyle dealership.

[00:10:46] Speaker 04:
Again, there was a one-day time frame when this took place.

[00:10:50] Speaker 01:
The board specifically rejected that.

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The ALJ and the board both rejected that argument that you didn't have some advance time here when you could have at least said, hey, something's in the work, change is a common, see the bankruptcy action.

[00:11:03] Speaker 01:
We know something's going to happen here.

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We're not as sure exactly how it's going to shake out.

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So I don't think we can go with your one-day theory.

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But not having bargained has no bearing on the end of what actually took place because the transfer was a fate incomplete, and I'll use the word transfer, Your Honor.

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They were over there.

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There was nothing to bargain at that point except, should my client have bargained on the effects?

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Yes.

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But then again, under Section 8D, there's no requirement to reach an agreement.

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And I think the Board was naive to say that they could have had different benefits and wages for the six people than the 14.

[00:11:39] Speaker 01:
But they weren't naive.

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They said, your client's failure to engage in this bargaining made it, I think in their words, impossible to tell.

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And so it was on what the consequence of bargaining would have been, whether we would have ended up with one unit or two.

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And so I'm trying to get your response, both as a matter of law and fact, to that analysis by the Board.

[00:12:00] Speaker 04:
Again, Your Honor, I don't think that the effects of bargaining created the situation because once the decision was made by the bankruptcy court to close the dealership, it was a fait accompli.

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If they chose to take the jobs, they were going to be in Lyle, not in Naperville.

[00:12:20] Speaker 02:
What about bargaining over what seniority these four mechanics would have?

[00:12:28] Speaker 04:
The board would like to impose different seniority on people who never worked at this dealership.

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That's their position.

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They want to impose different terms and conditions of employment when there is a community of interest among people who were already there.

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If they chose those jobs, they chose the jobs under the terms and conditions of employment that existed at the Lyell facility.

[00:12:47] Speaker 01:
But if you had bargained with them, even if you only had that day, you said, look what's coming, let's sit down and talk.

[00:12:53] Speaker 01:
We've got a couple hours.

[00:12:55] Speaker 01:
I think you would agree you could have bargained for different seniority, whether you would have reached or not.

[00:13:03] Speaker 01:
That certainly would have been a legitimate subject of bargaining, correct?

[00:13:07] Speaker 04:
On a Saturday, I think it's highly unlikely that bargaining could have occurred that day.

[00:13:10] Speaker 01:
My question is not what the result would have been.

[00:13:13] Speaker 01:
My question is that would have been a legitimate subject for the union and you to bargain over, correct?

[00:13:18] Speaker 04:
Which subject?

[00:13:21] Speaker 01:
Seniority.

[00:13:21] Speaker 04:
Seniority?

[00:13:23] Speaker 04:
They could ask, but there's no obligation to agree.

[00:13:27] Speaker 05:
Isn't this what happened in Comar, at least with respect to the law?

[00:13:30] Speaker 05:
I'm just going to read you this section.

[00:13:31] Speaker 05:
The petitioners argue, because a respondent has refused to bargain about the effects of the relocation, which was the issue in that case,

[00:13:42] Speaker 05:
And the ALJ says, in cases involving relocation of unit work, the Board has held that the obligation to bargain over the effects of the move on unit employees includes the obligation to bargain concerning the terms and conditions of employment under which employees will initially be employed at the new location.

[00:14:01] Speaker 05:
So that makes the answer to Judge Millett's question.

[00:14:03] Speaker 05:
Yes, they could have bargained over

[00:14:06] Speaker 05:
the terms and conditions of employment under which the employees will initially be employed at the new location, correct?

[00:14:11] Speaker 05:
Yes.

[00:14:12] Speaker 05:
But in Comar, you're... I'm sorry.

[00:14:14] Speaker 05:
Now, your second question was, well, there's no guarantee they would have reached that result.

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And in Comar, the ALJ says, the board has applied the same principle, situations that involve a merger of operations.

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Thus, these changes can be, but

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Because of the absence of the bargaining, these changes were unlawful.

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Thus, these changes can be accorded little weight in determining whether the unit remained appropriate.

[00:14:39] Speaker 05:
Told otherwise would allow respondent to benefit from its own unlawful conduct.

[00:14:44] Speaker 05:
Isn't that then a precedent for the proposition that when a company unlawfully does not engage in effect bargaining, it is

[00:14:55] Speaker 05:
permissible for the board to assume, for the purposes of at least the initial employment, that the union would have been successful.

[00:15:05] Speaker 05:
I totally disagree.

[00:15:07] Speaker 05:
And Comer, the facts are totally different.

[00:15:09] Speaker 05:
I'm not asking about this again as a separation of facts and the law.

[00:15:12] Speaker 05:
What I'm trying to figure out is this is a case where

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Every case is distinguishable on its facts, but the description of the law in Comar seems to be the same law that the board is applying here.

[00:15:24] Speaker 05:
Is that wrong?

[00:15:25] Speaker 05:
Why is that description wrong?

[00:15:26] Speaker 05:
The board says they should have engaged in the facts bargaining over terms and conditions.

[00:15:30] Speaker 05:
They didn't.

[00:15:31] Speaker 05:
So now we're not going to allow the change in the terms to have a role in the determination of whether it's the same unit or not.

[00:15:39] Speaker 04:
In Comar, they merely closed a plant and moved them to another plant where there was no union presence.

[00:15:46] Speaker 05:
They didn't commingle with other employees and therefore there was... All those are reasons that the case is distinguishable, but the law point doesn't seem distinguishable.

[00:15:56] Speaker 05:
The law point is that you can take into consideration

[00:16:01] Speaker 05:
uh... the possibility that you can assume the board can assume that the effects bargaining would have gone the union's way when it was unlawful to not engage in effects bargaining.

[00:16:14] Speaker 04:
I don't disagree that effects bargaining could have been entered into but there's no guarantee that anything would happen with that.

[00:16:21] Speaker 05:
Isn't that exactly what the ALJ said in Comar?

[00:16:24] Speaker 05:
These changes can be accord a little weight to hold otherwise would allow the respondent to benefit from its own unlawful conduct.

[00:16:33] Speaker 05:
That's the same point that the board's making here.

[00:16:36] Speaker 04:
But I don't see where there's a benefit to the petitioner here.

[00:16:39] Speaker 05:
Well, obviously, you would not be standing here if the petitioner wanted these employees to be regarded as a separate unit and with the union representing them.

[00:16:50] Speaker 05:
So obviously, from the point of view of the employer, it is a benefit to not have them represented by the union.

[00:16:57] Speaker 05:
Isn't that right?

[00:16:58] Speaker 05:
Otherwise, you wouldn't be here.

[00:16:59] Speaker 05:
I assume you wouldn't be paying... If they had just laid them off, we wouldn't be here.

[00:17:04] Speaker 05:
You might have a different set of unlawful activity under those circumstances.

[00:17:10] Speaker 05:
You already have a threat of laying people off, which the board found to be unlawful and which you're not even contesting.

[00:17:16] Speaker 05:
If you had actually laid them off in order to prevent unionization, you might have an even bigger problem than you have.

[00:17:22] Speaker 05:
But in any event, that's not the question before us.

[00:17:27] Speaker 05:
Are there further questions from the bench?

[00:17:30] Speaker 05:
No.

[00:17:30] Speaker 05:
Thank you.

[00:17:31] Speaker 05:
You're from my board.

[00:18:04] Speaker 03:
Good morning, Your Honors.

[00:18:05] Speaker 03:
Douglas Callahan on behalf of the National Labor Relations Board.

[00:18:09] Speaker 03:
The Board is willing to admit that the particular remedial situation crafted in this case creates a somewhat awkward bargaining situation for the employer.

[00:18:21] Speaker 03:
You've got two groups of mechanics.

[00:18:24] Speaker 03:
working side-by-side under similar conditions, except for significantly superior pay and benefits that one group receives.

[00:18:33] Speaker 01:
Well, I'm going to go back and ask.

[00:18:36] Speaker 01:
So imagine they're all working together now at Lyle.

[00:18:42] Speaker 01:
Six of them are paid on the terms they were at Dodge and have the same pay and hours they had at Dodge.

[00:18:50] Speaker 01:
The rest don't.

[00:18:52] Speaker 01:
But as to everything else, same location, same work, same supervisor, can wages alone, wages and hours alone, well the hours are probably the same, all they're trying there for at least 40 hours trying to get it, so the only difference would be wages I think and then the guaranteed pay.

[00:19:08] Speaker 01:
Would that be enough to make them a separate unit?

[00:19:10] Speaker 03:
Under the compelling circumstance, well, first of all, if I could just correct the fact that it's more than just superior pay, it's also significantly better benefits, and also guaranteed hours.

[00:19:20] Speaker 03:
Two employees actually couldn't make ends meet.

[00:19:22] Speaker 01:
Yeah, so I'll wrap the game, because the pay, I think, is influenced.

[00:19:25] Speaker 01:
The pay difference includes the fact that they're going to get it, whether they do the work or not, the guaranteed pay.

[00:19:29] Speaker 01:
So just focus on that.

[00:19:30] Speaker 03:
Trends in seafoods, the in-circuit precedent that talks about the compelling circumstances doctrine.

[00:19:37] Speaker 03:
very, very strongly supports what the board says in this case, that where you do have significant bargaining history, and in this case, two decades under which these Naperville mechanics were represented by Local 701, then only compelling circumstances can cause the dissolution of bargaining.

[00:19:53] Speaker 01:
Yeah, but I think the board here agreed that, you know, but for the failure to bargain over effects, you had compelling circumstances here, because these folks were integrated in every way conceivable.

[00:20:03] Speaker 03:
But I would say that that begs the question, but for the effects bargaining.

[00:20:06] Speaker 01:
I mean, effects bargaining is really... Well, that's right, but... ULP that began this... Right, so then this all turns on what the consequences... So we don't... So we can get to that, but I still want to back up and get to my preliminary one.

[00:20:21] Speaker 01:
Could wages alone, including the guaranteed hours, because that's guaranteed wages that the other employees didn't get, could that alone have made them a separate unit?

[00:20:29] Speaker 01:
Just that question.

[00:20:30] Speaker 03:
I know you've got a... Standing alone, I don't know if Board Preston, that would make them a separate unit.

[00:20:36] Speaker 01:
I think Abbott Hot, didn't Abbott Hospital say no?

[00:20:38] Speaker 01:
History and wages alone, when you have everything else the same, wasn't going to be enough there?

[00:20:43] Speaker 03:
I think the Board's decision is consistent with that reading of Abbott Hospital, Abbott Northwestern, yes.

[00:20:47] Speaker 01:
Okay, and so then we need to get to this question about can the failure to bargain over effects lead to this remedy, the board's conclusion that we can't tell what would have happened and so we're going to, I guess, assume for the purpose of our remedy that you're a separate unit and have you remedially treated as a separate unit for some

[00:21:12] Speaker 01:
period of time.

[00:21:13] Speaker 03:
Well, I would argue that that's really just the natural consequence of a very, very typical remedy in this situation.

[00:21:18] Speaker 03:
I mean, taking the effects bargaining first, that's the first violation.

[00:21:22] Speaker 03:
The remedy for effects bargaining is restoring the status quo ante.

[00:21:25] Speaker 01:
We can't restore the status quo ante because the status quo ante was they were working at a place that no longer exists.

[00:21:34] Speaker 03:
And that relocation decision is not something that the board would consider to be part of the status quo ante because that's a core management prerogative, a core management decision that the union has no right to bargain over.

[00:21:48] Speaker 03:
It's not part of the effects bargaining.

[00:21:50] Speaker 03:
We're just talking about the status point with regard to effects bargaining.

[00:21:53] Speaker 01:
And the closure and consolidation here were perfectly lawful.

[00:21:55] Speaker 01:
Aside from the failure to effects bargaining, you don't have any dispute.

[00:21:58] Speaker 01:
My understanding is there's no challenge that the closure or consolidation itself were an unfair labor practice.

[00:22:04] Speaker 03:
An employer, this is first national maintenance.

[00:22:09] Speaker 01:
In this case, there's no argument here that the closure was driven as an unfair labor practice, the consolidation, moving folks from there to Lyle was an unfair labor practice.

[00:22:20] Speaker 01:
Just the effects of bargaining.

[00:22:22] Speaker 03:
There's a core management decision about how to manage their capital that the board has decided is not significantly aided by the process of collective bargaining.

[00:22:30] Speaker 03:
That's why we have this effects bargaining distinction.

[00:22:33] Speaker 03:
There are certain decisions that lie at the very heart of an employer managing its business.

[00:22:39] Speaker 03:
And then there are other things where the employer has some leeway, some ability to bargain with the union about details.

[00:22:45] Speaker 03:
Like, for example, the terms on which employees will be transferred to another facility.

[00:22:50] Speaker 03:
And for example, whether those employees will be able to carry their seniority.

[00:22:54] Speaker 03:
On that point, there's been some discussion about the state of the law.

[00:22:57] Speaker 03:
I believe the court is right to fasten on the first decision in Comar.

[00:23:01] Speaker 03:
There were two decisions in Comar, 2003 and 2007.

[00:23:04] Speaker 03:
We want to look at the first one, 2003.

[00:23:06] Speaker 03:
In that one, in that case, the right to bargain, the right of a union to bargain over the conditions at the transferred facility.

[00:23:17] Speaker 03:
was established.

[00:23:18] Speaker 03:
And that case was enforced by this court in 2004.

[00:23:21] Speaker 03:
And then there's Cooper Thermometer, one of Judge Friendly's cases, in which Judge Friendly specifically speaks to this issue of the transfer of seniority and says that that's something that the union has to bargain over.

[00:23:31] Speaker 03:
And that's a condition of employment, right, at the second facility.

[00:23:35] Speaker 01:
But the argument here is that, as I understood the board, and correct me if I'm wrong, was not really about seniority.

[00:23:44] Speaker 01:
It was, wow, you could have negotiated wages and terms of employment that would have essentially, we don't know, but you could have done it in a way, to such a degree that this would have been a separate unit.

[00:23:57] Speaker 01:
Is that correct?

[00:23:58] Speaker 03:
Right.

[00:23:59] Speaker 03:
I mean, seniority wasn't in play because there wouldn't be a relevant seniority distinction between the unrepresented and the representative.

[00:24:05] Speaker 01:
Right.

[00:24:06] Speaker 01:
So that's off the table.

[00:24:07] Speaker 01:
I'll just tell you what is troubling me so you can tell me why I'm wrong, is that in all the other cases, including Comar,

[00:24:16] Speaker 01:
there was either a causal, there was a causal connection that could be found between the alleged unfair labor practice violation and the creation or the potential creation of a single versus a separated units.

[00:24:34] Speaker 01:
In Comar, for example, they were actually very distinct.

[00:24:37] Speaker 01:
They didn't merge at all.

[00:24:39] Speaker 01:
So there was a substantial evidence basis for the board to determine that the only thing that may force them into a single unit here was the failure to bargain over the effects of the transfer.

[00:24:51] Speaker 01:
Here, I didn't see any causal finding or any substantial evidence or point me to it to suggest that the failure to engage in effects bargaining had any impact.

[00:25:03] Speaker 01:
on whether this was going to be one unit or a separate unit once they got there.

[00:25:08] Speaker 01:
It seems untenable that it would have been a separate unit.

[00:25:11] Speaker 01:
And that's why I think it's different.

[00:25:13] Speaker 01:
But tell me how I'm wrong.

[00:25:14] Speaker 03:
Well, I think you're making certain presumptions about how collective bargaining would have turned out.

[00:25:19] Speaker 03:
And I think this court and also the board have to remain agnostic about collective bargaining.

[00:25:22] Speaker 03:
The idea behind collective bargaining is that you have a difficult decision that involves labor and management, and you force them to sit down at a table.

[00:25:30] Speaker 03:
And according to the terms of the act, you don't presume that the bargaining is going to come out one way or the other.

[00:25:35] Speaker 03:
You don't order a particular result.

[00:25:37] Speaker 03:
And in this case, for example, the board doesn't say what ultimately has to result from the two parties sitting down and bargaining over this transfer of the employees.

[00:25:46] Speaker 03:
It could very well turn out that the bargaining goes poorly for the union, and the union's bargaining unit doesn't survive.

[00:25:52] Speaker 01:
No, but I guess in the other, don't you need some record basis for thinking that the violation had some impact on this result, this factual result on the ground, and I don't see any, I mean, can you hypothesize any basis, just hypothesize for me, any basis on which

[00:26:12] Speaker 01:
All that bargaining, assume the best faith by everybody and assume they reach something that's going to have these mechanics be a separate unit.

[00:26:20] Speaker 01:
At Lyle, it just seems inconceivable to me that you're going to have two mechanics units in a single garage.

[00:26:26] Speaker 03:
I mean, I think that kind of hypothesizing is actually prohibited by the Act.

[00:26:31] Speaker 03:
I think that's not what we're supposed to do.

[00:26:33] Speaker 03:
I mean, is there an imaginable situation in which the bargaining unit could continue?

[00:26:37] Speaker 03:
Yes.

[00:26:38] Speaker 03:
I mean, I think it's possible that the employer could sit down at the bargaining table with Local 701 and realize that these Naperville mechanics and that the benefits that they receive are the benefits that everyone at the Lyle facility should receive.

[00:26:53] Speaker 03:
and he could raise all, you know, excuse me, or... That's not a separate unit.

[00:26:57] Speaker 01:
Excuse me, I misspoke.

[00:26:58] Speaker 01:
If I could take that back.

[00:26:59] Speaker 01:
I'm sorry.

[00:27:00] Speaker 03:
You're right.

[00:27:00] Speaker 03:
I mean, he could recognize that it would be simply unfair and create six disgruntled mechanics if he were to take away their benefits, and he could permit those benefits to continue.

[00:27:09] Speaker 03:
I mean, that's certainly imaginable.

[00:27:11] Speaker 01:
That seems to be contrary to all the board cases talking about, again, like Abbott, where you can't have these separate units.

[00:27:18] Speaker 01:
You're essentially turning this effects bargaining into the ability to have a minority union at Lyle.

[00:27:24] Speaker 03:
Well, and again, Abbott is distinguishable because you don't have the compelling circumstances analysis being brought to bear there, as the board said in its decision.

[00:27:32] Speaker 01:
I'm sorry, explain that in a little more detail?

[00:27:34] Speaker 03:
Well, right.

[00:27:34] Speaker 03:
So in Abbott, there's no discussion by the board of any significant history that the represented employees have.

[00:27:45] Speaker 01:
No, but they had, I think, like 10 years of market representation there, correct?

[00:27:49] Speaker 03:
It's simply not part of the holding, Your Honor.

[00:27:51] Speaker 01:
No, but it's part of the facts, right?

[00:27:53] Speaker 03:
It might be part of the facts, but it's not part of the law.

[00:27:56] Speaker 03:
And so what you don't have there is the compelling circumstances test, which is very well established in frightened seafoods.

[00:28:04] Speaker 03:
If I could talk a little bit.

[00:28:07] Speaker 01:
I'm sorry, I don't want to let you make your point.

[00:28:09] Speaker 01:
I just want to make sure I understand how this works.

[00:28:13] Speaker 01:
So your view, you understand the Boris decision here to be that once we find an effects bargaining violation,

[00:28:21] Speaker 01:
And unlike the other cases, we can't tell.

[00:28:26] Speaker 01:
There's no basis for us one way or the other to know whether that had any impact on them being a single unit or not.

[00:28:32] Speaker 01:
All the other ones, they knew it had an impact because they didn't actually integrate.

[00:28:37] Speaker 01:
or it seemed there was violations in how they actually sort of brought this whole consolidation process together.

[00:28:44] Speaker 01:
But when we just can't tell, then we can impose a remedy that at least for a year, six months or a year, has a minority union functioning.

[00:28:55] Speaker 03:
No, I mean, I don't think that's going to be the result in every case.

[00:28:58] Speaker 03:
I mean, let's imagine that.

[00:28:59] Speaker 01:
No, let's result in this case.

[00:29:00] Speaker 03:
It's the result in this case because of significant bargaining history.

[00:29:03] Speaker 03:
Imagine that Local 701 had just been elected the bargaining representative of these employees at the time that the transfer occurred.

[00:29:10] Speaker 03:
There's no significant bargaining history.

[00:29:11] Speaker 03:
And at that point, the employer then, in violation of the law and without effects bargaining, transfers these people to Lyle.

[00:29:17] Speaker 03:
In that situation, you don't have the compelling circumstances test involved.

[00:29:21] Speaker 03:
All you have are potentially a failure.

[00:29:24] Speaker 01:
It actually seems worse.

[00:29:25] Speaker 01:
It seems to me like it would look like the employer, you'd probably have an argument the employer was trying to defeat the union by moving everybody over here.

[00:29:31] Speaker 01:
Yeah, you had a long history, but you also had a collective bargaining agreement that's going to expire in about two weeks and is now going to be, by this remedy, extended for, it's a practical matter, for a year at least.

[00:29:45] Speaker 03:
That is one of the consequences of the board's affirmative bargaining order, and one of the reasons why it's required in this case is exactly because the employer so totally disregarded the union's status.

[00:29:56] Speaker 05:
There could have been a reasonable separate unit for the transition period, but for the way in which the employer acted.

[00:30:06] Speaker 05:
which is not necessarily any requirement that it would have continued after the collective bargaining agreement ended.

[00:30:14] Speaker 05:
Once that agreement ended, and if it ended and in good faith it was no more bargaining, that would be the end of it.

[00:30:22] Speaker 05:
Then there would be no argument at that point for a separate unit, correct?

[00:30:26] Speaker 03:
Right.

[00:30:27] Speaker 03:
I mean, if the employer had said I had complied with the law and had actually done effects bargaining and had fulfilled its duty and decided to ultimately at the end of it, you know, and ultimately at the end of it there weren't distinct terms and conditions of employment for these employees.

[00:30:43] Speaker 03:
as opposed to the LIO employees, and they were transferred over to LIO.

[00:30:47] Speaker 03:
We wouldn't be talking about the CBA.

[00:30:48] Speaker 05:
And the same is true here, that the end of the good faith bargaining period, if there's no agreement on the same terms and conditions, that would be the end of the question.

[00:30:59] Speaker 05:
And at that point, we would no longer have any presumption based on the facts bargaining,

[00:31:06] Speaker 05:
The history would be nice, but too bad.

[00:31:08] Speaker 05:
The history's over.

[00:31:09] Speaker 05:
And at that point, it could be one unit.

[00:31:12] Speaker 05:
So what we're really only talking about is whether it could be a separate unit during this transition period.

[00:31:19] Speaker 01:
Is that what the board said?

[00:31:20] Speaker 03:
No, I don't.

[00:31:23] Speaker 03:
That at least last part I don't quite follow.

[00:31:25] Speaker 03:
I mean, in this particular remedial situation, given the remedy that the board ordered, the local 701 is the union at Lyle for those six employees and will continue to be such until the bargaining unit becomes inappropriate for any particular reason.

[00:31:44] Speaker 05:
Well, would it become inappropriate if at the end of the

[00:31:47] Speaker 05:
good faith bargaining period.

[00:31:49] Speaker 05:
There's no agreement that leads to terms and conditions that are any different from that of the other.

[00:31:58] Speaker 03:
If that were the product of good faith bargaining that suddenly the Naperville and the Lyle mechanics have the same paying benefits, then yes, under those circumstances, even with the significant bargaining history, there would be compelling circumstances showing that these two groups of employees

[00:32:16] Speaker 03:
should be one bargaining unit and not two.

[00:32:19] Speaker 01:
So you can actually just negotiate your way into a permanent creation of essentially a minority union in a workplace if everything else

[00:32:30] Speaker 01:
Everything else suggests integration.

[00:32:33] Speaker 01:
Same place location, same work done, same supervisor, same tools, same uniforms.

[00:32:42] Speaker 01:
The question I'm asking is, you're saying what the union can do.

[00:32:49] Speaker 01:
What the board can say is that in fact this employer could have negotiated with the union a situation where at Lyle from the time of transfer going forward forever, because of course those six employees are always going to agree to have better benefits and pay than their colleagues.

[00:33:10] Speaker 01:
You could negotiate your way into having two different units that for every other reason and factor recognized by the board,

[00:33:22] Speaker 01:
would be a single consolidated unit.

[00:33:24] Speaker 03:
So first of all, I would say that it wouldn't be a minority union situation.

[00:33:27] Speaker 03:
The minority union term is reserved.

[00:33:29] Speaker 01:
No, I understand that.

[00:33:30] Speaker 01:
But functionally, what we've done now is that we're going to... It's a possible result.

[00:33:34] Speaker 01:
Again... We can't have a union for everybody.

[00:33:36] Speaker 01:
So let's just have it for these six folks.

[00:33:39] Speaker 01:
And let's keep it going as long as those six folks want to have it going forward forever.

[00:33:45] Speaker 03:
It's not for their unilateral determination.

[00:33:46] Speaker 03:
I mean, the employer, you know,

[00:33:48] Speaker 03:
they're allowed to make that proposal at the bargaining table.

[00:33:51] Speaker 03:
The employer is going to make a proposal that presumably is going to be different.

[00:33:55] Speaker 03:
And then we'll see where bargaining takes us from there.

[00:33:58] Speaker 01:
Maybe you've got an employer who loves the union, is so upset, so upset these Lyle folks assume had voted down the union.

[00:34:06] Speaker 01:
I'm going to show them.

[00:34:08] Speaker 01:
They shouldn't have voted down the union.

[00:34:09] Speaker 01:
I love union.

[00:34:10] Speaker 01:
I was raised by unionized parents.

[00:34:13] Speaker 01:
And so we're going to go forward and then they're really going to be sorry they voted against the union because the people right next to them, laying there, you know, working on the rear tire while you work on the front tire, getting paid more and more hours and better benefits.

[00:34:27] Speaker 03:
I don't really know that that fact situation washes because in that situation, I mean, with the employer... Isn't that the reality?

[00:34:33] Speaker 01:
Huh?

[00:34:33] Speaker 01:
Isn't that the reality of how it's going to feel in this shop?

[00:34:35] Speaker 03:
I don't know that there's any, in reality, there's any employer who would act like that.

[00:34:39] Speaker 03:
I mean, you've got to assume, I mean, collective bargaining is an adversarial situation.

[00:34:42] Speaker 01:
Put away the employer's attitude now, but for at least the time period, which you say can go on as long as they end up with a collective bargaining agreement and all the fights it'll go over if there isn't one, you're going to have a time period where literally the person on the rear tire and the front tire have entirely different pay and hours.

[00:35:00] Speaker 01:
And probably now the Lyle folks are going to have worse hours because all the guaranteed work has to go to these folks.

[00:35:06] Speaker 01:
And they're all going to say, it's only because we don't have a union.

[00:35:10] Speaker 03:
It's a possible imaginable consequence.

[00:35:13] Speaker 01:
Imaginable is a stretch.

[00:35:14] Speaker 03:
It's awkward.

[00:35:15] Speaker 03:
We're willing to recognize that it's awkward.

[00:35:17] Speaker 03:
But you know what?

[00:35:18] Speaker 03:
We wouldn't be in this awkward situation if the employer had just done the effects bargaining that it should have at the beginning.

[00:35:25] Speaker 03:
It would have had to have been done on a pretty quick timetable, given everything, you know, given the swiftness with which the bankruptcy proceeding was going in Chrysler.

[00:35:33] Speaker 03:
But the employer could have done it.

[00:35:35] Speaker 03:
The employer could have complied with their effects on an obligation.

[00:35:37] Speaker 03:
If they had done it, then this series of dominoes wouldn't have fallen, which ultimately results in an admittedly awkward situation where you have six represented employees and 14 unrepresented employees working under the same roof.

[00:35:49] Speaker 02:
Can you tell me what, if anything, the record shows about the non-union LIO mechanics, whether they all were paid at the same hourly rate, or did it vary?

[00:36:02] Speaker 03:
I can't give you a specific site to that, but my recollection is that they all were paid the same amount.

[00:36:08] Speaker 02:
So they all made X dollars an hour.

[00:36:11] Speaker 02:
None made more than that.

[00:36:14] Speaker 03:
Right.

[00:36:15] Speaker 03:
And they made X dollars an hour, and I believe it was even the same pay rate as the Naperville mechanics.

[00:36:20] Speaker 03:
The real difference was that Naperville mechanics had guaranteed 34 hours of work every week.

[00:36:26] Speaker 03:
You show up for work for 40 hours, you're going to at least get paid for 34 of those.

[00:36:30] Speaker 03:
In Lyle mechanics, you show up for work for 40 hours, there's no guarantee you're even going to get an hour of work if nobody's coming through the door.

[00:36:38] Speaker 01:
And once that guarantee is brought into that shop,

[00:36:41] Speaker 01:
those folks that were there at Lyle all along are going to have even less chance of getting work, correct?

[00:36:45] Speaker 01:
Because I assume the employer is going to say, I'm going to pay these people for 34 hours no matter what, so everything comes in the door is going to those six until they've got their 34 hours.

[00:36:55] Speaker 03:
No, I don't want to speak to that.

[00:36:59] Speaker 03:
It might involve discrimination in favor of a union in that case.

[00:37:03] Speaker 03:
I'm not exactly.

[00:37:04] Speaker 03:
It wasn't presented by this case, and the board didn't decide it.

[00:37:06] Speaker 02:
But presumably the employer could negotiate and say, look, I can't guarantee you 34, but I'll guarantee you 20, and maybe ultimately transition that 20-hour guarantee to everybody, even if the union, if that unit dissolves, right?

[00:37:26] Speaker 03:
Exactly, Your Honor.

[00:37:27] Speaker 03:
And if I could speak to your earlier point about relocation transfer, whether this was a transfer.

[00:37:32] Speaker 03:
It most certainly was a transfer or as the board said a relocation in light of the board's finding that this was a single employer.

[00:37:42] Speaker 03:
that the Naperville and the Lyle facilities were not two distinct corporations.

[00:37:47] Speaker 03:
Well, they were distinct corporations, but they weren't distinct employers.

[00:37:50] Speaker 03:
And so when the employer moved these employees from Naperville to Lyle, it was really a relocation within one integral business.

[00:37:58] Speaker 03:
And that's a finding that actually wasn't challenged on appeal.

[00:38:02] Speaker 05:
Other questions from the bench?

[00:38:05] Speaker 05:
Thank you.

[00:38:05] Speaker 05:
Is there any time left?

[00:38:07] Speaker 05:
You're out of time, but we'll give you one more minute, if you want it.

[00:38:13] Speaker 05:
Most people do.

[00:38:15] Speaker 05:
Not always a good idea.

[00:38:18] Speaker 04:
The one thing that has not been asked or focused on, and Judge, you came close to it, is requiring Lyle to bargain with the union for the six people out of the 20, violate Section 882 of the Act.

[00:38:32] Speaker 04:
It tramples all over the Section 7 rights of the 14 employees who were there, and it tells them you are bargaining with a minority unit, and they're precluded from doing so under Section 882.

[00:38:43] Speaker 04:
I have nothing further.

[00:38:44] Speaker 04:
Thank you.

[00:38:45] Speaker 05:
Take the matter under submission.

[00:38:46] Speaker 05:
Call the next case.