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Case number 14-1056 at L. Fallbrook Hospital Corporation.

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Doing business at Fallbrook Hospital.

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Petitioner versus National Labor Relations Board.

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Ms.

[00:00:12] Speaker 00:
Cassetta for the petitioner.

[00:00:13] Speaker 00:
Ms.

[00:00:14] Speaker 00:
Sheehy for the respondent.

[00:00:48] Speaker 05:
Good morning, Your Honors.

[00:00:49] Speaker 05:
May it please the Court, Caitlin Cassetta, hearing on behalf of Fallbrook Hospital Corporation, doing business at Fallbrook Hospital.

[00:00:56] Speaker 05:
Today, the hospital respectfully requests that this Court deny enforcement of the Board's award of negotiation expenses in the underlying case for two reasons.

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First, the Board's award of negotiating expenses are not supported by substantial evidence based upon a review of the record as a whole.

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Second, the Board's application of one singular case in terms of precedent for its award of negotiating expenses was arbitrary and capricious given how entirely inopposite the case cited, unbelievable, was to the Board's award of negotiating expenses in this case.

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Alternatively, the hospital respectfully requests that the board's award of negotiating expenses be remanded for two reasons.

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First, so that the board can explain the award of negotiating expenses under a set of facts so entirely different from the facts present in unbelievable.

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And second, in light of the changed circumstances that have occurred in the case since the board's order and award were filed or issued in April of 2013.

[00:01:56] Speaker 01:
Could we talk about that last point just for one moment?

[00:01:58] Speaker 01:
That has to do with your motion to revend.

[00:01:59] Speaker 05:
Yes, Your Honor.

[00:02:01] Speaker 01:
So the board's response is that the exp...

[00:02:04] Speaker 01:
The remedy for expenses has to do with past expenses, money that the union spent unnecessarily because of your client's actions, and the changes that you're talking about have to do with things that occurred after that.

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So if we assume for the moment that the remedy was appropriate,

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How does your motion to remand change the situation?

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How do circumstances that change later have anything to do with the fact that the union was required to spend money for negotiations that it shouldn't have been required to spend?

[00:02:41] Speaker 05:
Your Honor, the board's justification cited in its decision in order for the award of negotiating expenses is two-pronged.

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First, that the union must be made whole, and second, that the board must restore the status quo ante that exists at the bargaining table between the parties.

[00:02:56] Speaker 01:
Given the changes... As of that time.

[00:02:59] Speaker 01:
I would imagine that... That's what ante means, right?

[00:03:02] Speaker 01:
That is, the status quo before the misconduct by your client.

[00:03:07] Speaker 05:
Precisely, Your Honor.

[00:03:08] Speaker 05:
That's what needed to be restored, but the reason for the restoration was prospective, so that in bargaining going forward, the two parties would be on equal footing as they bargained towards a collective bargaining agreement.

[00:03:18] Speaker 01:
Where does it say that?

[00:03:19] Speaker 05:
In the board's order?

[00:03:22] Speaker 01:
Yeah.

[00:03:22] Speaker 01:
I see the part that says to restore the economic strength that is necessary to ensure return to the status quo ante.

[00:03:28] Speaker 01:
at the bargaining table, but I don't see why, where it says that the purpose is to ensure they're able to do things better in the future.

[00:03:36] Speaker 01:
Your position is you could destroy the union and that would be okay because we're not going to have employees anymore anyway?

[00:03:45] Speaker 05:
Our position was never an attempt to destroy the union.

[00:03:48] Speaker 01:
I'm asking you as a hypothetical.

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Imagine that were the consequence.

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You would say that the changed circumstances that we don't have any employees anymore means we don't have to give, we don't have to put the union back in the situation it was?

[00:04:00] Speaker 05:
Your Honor, our argument is slightly more nuanced than that, in that we appreciate the restoration, we understand the board's justification of a make-hole remedy.

[00:04:09] Speaker 05:
But that's not the only justification that the board relied upon.

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Here it also states that half of, at least half of its goal, perhaps more, perhaps less, the board isn't entirely clear in its decision, but part of its consideration is the idea that the parties must be returned to equal footing for prospective bargaining sessions.

[00:04:26] Speaker 05:
If they're going to restore the status quo... Where does it say that?

[00:04:29] Speaker 02:
I believe it's implied.

[00:04:31] Speaker 02:
Focus on the board's order.

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The board's order says they're granting negotiation expenses because they wanted to make the union whole for the resources that were wasted because of your client's unlawful activity.

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That's the justification.

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The justification is... And there's case law that supports that.

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In appropriate circumstances where the board decides that it's sufficiently egregious under the terms they've stated, they will award expenses.

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because the union is wasting time unnecessarily.

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That's the justification.

[00:05:00] Speaker 05:
That's part of the justification.

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The board's stated justification is both that it needs to restore, but the reason stated, there's no explanation for why they would need to restore the status quo at the bargaining table if the board hadn't been contemplated for negotiations going forward.

[00:05:20] Speaker 04:
Isn't the union a union that represents

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other employees and other workplaces.

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I mean, it's a general just saying, you know, the union should be made whole so it can go on and do the work that it is statutorily protected in doing, which includes any work this union might want to do anywhere, no?

[00:05:40] Speaker 05:
Your Honor, that may be a sufficient reason to award negotiating expenses, but that's not the reason stated by the board, and that's why we would be asking for remand.

[00:05:48] Speaker 04:
I don't think it's

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necessarily limited to your interpretation.

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It says to restore the economic strength that is necessary to ensure a return to the status quo ante at the bargaining table.

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The bargaining table is where the union goes for all its employees.

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And it's just basically saying, so the union can get back to where it was and do its work.

[00:06:07] Speaker 05:
Well, Your Honor, I would be worried at that point about the punitive nature of an award of that type to an employer who's no longer bargaining.

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So if the National Labor Relations Act and the board are- How is it punitive to restore

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somebody to the position that they were in, but for the misconduct by your client.

[00:06:28] Speaker 01:
That's not punitive.

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That's purely remedial.

[00:06:31] Speaker 05:
Yes, and if the board had stated simply that the reason for the imposition of the award of negotiating expenses was the fact that they wanted to make whole, then I wouldn't have filed, my client wouldn't have filed the motion to remand.

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However, the board's justification is not simply a make whole remedy.

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It also includes this language regarding the status quo at the bargaining table, which if the board does wish for that to apply to all employers that the union might deal with, or simply the one employer here in the case so far, that is not clear from the board's decision and that's why a remand would be appropriate.

[00:07:08] Speaker 05:
I'd like to turn now to the reasons why this court should deny enforcement of the board's award of negotiation expenses.

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The board relies on three factors in the underlying case for its finding of unusually aggravated misconduct.

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But the record would reflect that none of the three factors relied upon by the board rises to the level of unusually aggravated misconduct.

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The requirement that the hospital placed on the union

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that it submit its proposals before the hospital would respond to those proposals was one made in good faith where the union had submitted roughly 90 percent of its proposals in the first bargaining session.

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Furthermore, substantial evidence of good faith exists in the record below where it shows that the hospital did provide information so that the union could complete its bargaining proposals and, true to its word, the hospital did exchange

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proposals with the union.

[00:08:04] Speaker 01:
Did the ALJ accept that that was done in good faith?

[00:08:07] Speaker 05:
The ALJ does not hold that it's in good faith.

[00:08:11] Speaker 01:
It's my client's representation that it's evidence of good faith ignored by the board and findings are usually... So you really are challenging not only the remedy but the underlying finding even though you're not appealing that.

[00:08:22] Speaker 05:
We're not appealing the underlying finding.

[00:08:24] Speaker 01:
The underlying finding is that it was not in good faith.

[00:08:27] Speaker 01:
So what are we supposed to do with this?

[00:08:29] Speaker 05:
The underlying finding is that there is a violation and we're appealing on the grounds of what we believe is the mischaracterization in terms of how the conduct is viewed.

[00:08:38] Speaker 01:
But the violation was for not conducting bargaining in good faith, right?

[00:08:43] Speaker 01:
Yes, Your Honor.

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That's the violation.

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And you're not appealing that.

[00:08:45] Speaker 05:
No, but we are appealing a finding of unusually aggravated misconduct by the hospital.

[00:08:50] Speaker 01:
But you're trying to defend on that, appeal on that, on the ground that you were acting in good faith when you're not appealing the finding that you didn't act in good faith.

[00:09:01] Speaker 01:
I'm a little mixed up as to how we do this.

[00:09:03] Speaker 05:
Sure.

[00:09:03] Speaker 05:
Your Honor, I'm not asking the court to reverse the finding of bad faith.

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What I'm saying is that you can't get to unusually aggravated misconduct in cases where even if the overall conclusion was bad faith by the board, there's still evidence of good faith which cuts against a finding of unusually aggravated misconduct.

[00:09:20] Speaker 04:
So that would be helpful if you would focus on the conduct that is not in contradiction to the ALJ's bad faith findings that you say is supported by the record that is in good faith.

[00:09:31] Speaker 04:
What is that conduct?

[00:09:32] Speaker 05:
For example, the record below does indicate that the hospital responded to the union's request for information.

[00:09:40] Speaker 04:
When did it do that?

[00:09:42] Speaker 05:
Throughout the bargaining between the parties, there were 11 bargaining sessions held throughout 2012 and 2013.

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And I believe that the record indicates that throughout that process, from the very first bargaining session, the hospital responded to requests for information from the union.

[00:09:58] Speaker 04:
That's not my reading of the record.

[00:10:01] Speaker 04:
Can you point to anything specific that shows a prompt production of information that was either needed by the union to prepare its proposals or requested by the union as part of its representation needs?

[00:10:15] Speaker 05:
I believe that the administrative law judge's decision in the case indicates

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that, for example, the first bargaining session took place on June 13th of 2012.

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And then at that bargaining session, a preliminary information request was provided to the union.

[00:10:34] Speaker 05:
That request was responded to, at least in TART, on June 25th, 12 days later, by the hospital.

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And then another.

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What page are you looking at?

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Are you at three or?

[00:10:45] Speaker 05:
I'm on the ALJ Laws Decision, page six.

[00:10:49] Speaker 05:
I think your pages are the same as mine.

[00:10:51] Speaker 04:
So that would be 283 of the appendix.

[00:10:55] Speaker 04:
I'm sorry?

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I haven't found it in the appendix.

[00:10:58] Speaker 04:
283 of the appendix.

[00:11:00] Speaker 05:
I don't have the appendix before me, but I can give you the quote and we can make sure.

[00:11:04] Speaker 05:
I have Matthews gave the hospital a preliminary information request.

[00:11:07] Speaker 04:
Paragraph number?

[00:11:09] Speaker 05:
It's under heading B, bargaining meetings in progress.

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End of the first paragraph just after footnote eight.

[00:11:24] Speaker 04:
Okay, on June 25th, the union receives some of the information.

[00:11:27] Speaker 04:
That's correct.

[00:11:29] Speaker 02:
And then... The AALJ, in the last paragraph on that subject, makes it absolutely clear there's a violation for failure and says that your explanations are not adequate.

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And you said to Chief Judge, you're not challenging those findings.

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The AALJ specifically says in the last paragraph, I hear your defenses, I don't buy it.

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Your claim on confidentiality comes too late.

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You didn't raise that.

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and goes through the rest of it and says, you violated the act by refusing to grant information.

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That's a finding.

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You're not challenging.

[00:12:02] Speaker 05:
Your Honor, I understand that.

[00:12:03] Speaker 05:
What we are challenging is the characterization by the board of those findings as conduct sufficient to rise to the level of unusually aggravated misconduct.

[00:12:11] Speaker 02:
So write the opinion for me.

[00:12:16] Speaker 02:
How do we distinguish?

[00:12:17] Speaker 01:
He doesn't mean that literally.

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Take you up on the offer.

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This is within their discretion to make that determination.

[00:12:28] Speaker 02:
And how do they somehow violate the trust that we have in them as an agency, with the expertise they have, to look at the circumstances here, to find this bad faith bargain was sufficient to justify an award of negotiating expenses?

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While the hospital understands that the board is granted a wide range of discretion and deference, the board is still obligated to justify its decision making.

[00:12:53] Speaker 02:
At least in my mind it is there.

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They signed the case law, they explained what the findings were, and they said in their view that's enough.

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This is an employer who is doing not good things under the Act.

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And they were doing enough of it so that we're not going to tolerate this.

[00:13:08] Speaker 02:
Now, what is it that's wrong with that?

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What would I write as a judge and say, yeah, we understand there was an unfair labor practice, but you went over, what's the magical line?

[00:13:19] Speaker 02:
What?

[00:13:20] Speaker 05:
Well, that's actually the precise reason why we're appealing the award of negotiating expenses.

[00:13:25] Speaker 05:
If you set aside the question of the facts and the underlying record and focus on the board citation to unbelievable, there's no evidence in this case that rises to the same level.

[00:13:38] Speaker 01:
And why does it have to do that?

[00:13:41] Speaker 01:
I think everybody agrees, or at least the ALJ agreed it was not as egregious as in unbelievable.

[00:13:47] Speaker 01:
But unbelievable didn't say it has to be as unbelievable as an unbelievable.

[00:13:52] Speaker 01:
It just says it has to be egregious.

[00:13:55] Speaker 05:
Right, but it really doesn't draw a line for employers.

[00:13:57] Speaker 05:
It's arbitrary.

[00:13:58] Speaker 01:
That's no problem with the word egregious.

[00:14:01] Speaker 01:
Now we're doing this on a case-by-case basis.

[00:14:04] Speaker 01:
Now we'll have another case in which if

[00:14:07] Speaker 01:
Employers will know that if they repeatedly refuse to engage in bargaining and walk out on proceedings and all the other things that don't provide the information, then it's egregious.

[00:14:24] Speaker 05:
More explanation is required from the board, because the departure from unbelievable is a substantial departure.

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In unbelievable, the behavior is willful disregard of established black letter law.

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And those same circumstances do not apply in this case.

[00:14:38] Speaker 04:
Ms.

[00:14:38] Speaker 04:
Cassetta, I think one of the concerns about this case is if you take all the conduct together.

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And one of the reasons I was asking you about what would you point to that's evidence of good faith is you go through this, and it just

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it's hard to identify any affirmative engagement by the hospital.

[00:15:00] Speaker 04:
You know, they have a problem, and instead of saying, you know, we're gonna have to work out these, what is it called, an ADO, you know, and how that interacts with what we're doing, and the union says, yeah, we'll talk about that.

[00:15:11] Speaker 04:
And instead of sitting down and saying, look, we need to make sure that this is covered by a privilege, we need to make sure that the employees know that our, you know, form is never optional, and the union has to get on board with that,

[00:15:22] Speaker 04:
That's not what they did, right?

[00:15:24] Speaker 04:
Carmody walks out and, you know, in situations where providing information each time you point me to something, it's like, well, they provided some, you know, they held out on information that the union thought was important.

[00:15:35] Speaker 04:
They walked out of meetings.

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There's a management person recently.

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to management person in the room instead of saying, can we have her leave so we can proceed because now her status has changed, walk out.

[00:15:46] Speaker 04:
So you look at this and you say, what actually did they do?

[00:15:48] Speaker 04:
I mean, it reads like, and it may not have been in some as egregious, I think everybody agrees, it's not as egregious as the unbelievable case.

[00:15:56] Speaker 04:
Nothing in the unbelievable case requires that.

[00:15:58] Speaker 04:
So then the question is, what shows that they were functioning in any way as a bargaining partner?

[00:16:05] Speaker 05:
I think that the question in this case with regard to the denial of enforcement or the remand doesn't have to do so much with the hospital's affirmative obligations to take action, so much as it does with the board's obligation to justify why it's departing.

[00:16:22] Speaker 05:
The standard for an award of negotiating expenses is unusually aggravated misconduct.

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And in unbelievable, in HTH Corporation, in Harrow Services, all the cases cited by the board

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both both as post hoc rationalization and in the order themselves all of those cases indicate a willful disregard of established law and that does not exist and was not found by the board in this case they didn't say the board's saying that it's willful disregard of established law isn't the isn't the test the test is unusual and

[00:16:57] Speaker 01:
Who knows better what's usual and unusual than the board, which sees hundreds and hundreds and hundreds of these cases every day as compared to the court, which doesn't.

[00:17:06] Speaker 01:
So don't we have to defer to their view unless their view itself is arbitrary and capricious?

[00:17:12] Speaker 05:
Their view itself is arbitrary and capricious inasmuch as they cite to only unbelievable for the proposition that an award of negotiating expenses is appropriate.

[00:17:22] Speaker 05:
And the courts have previously found that when an agency does that, it relies on inopposite case laws, the sole basis upon which

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to rest their decision, that decision is rendered arbitrary and capricious.

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So to the extent the board wants to extend what was supposed to be a limited remedy for extraordinary circumstances to cases with much more ordinary circumstances like the ones at bar, then it needs to do so with a more thorough and detailed rationale included in their decision.

[00:17:49] Speaker 05:
And that does not exist in the board's order and award here.

[00:17:51] Speaker 01:
Let me just ask two fact questions.

[00:17:53] Speaker 01:
In your brief at page 15, you talk about two things which were in mitigation.

[00:17:59] Speaker 01:
One is that the parties had a pre-agreement, and the other that the hospital believed that this was going to go to an arbitrator.

[00:18:08] Speaker 01:
In looking in your answering brief on the question of remedies, you don't mention either of those.

[00:18:14] Speaker 05:
Well, I believe that we are as we're not challenging the underlying finding of a violation of the law and we're just challenging the characterization of that violation as unusually aggravated misconduct.

[00:18:27] Speaker 05:
We did not focus our appeal on the question of the existence of the labor relations agreement.

[00:18:32] Speaker 05:
However, it is implicated.

[00:18:34] Speaker 01:
by the board's finding of unusually aggravated misconduct inasmuch as... I understand that, but you complain that the board failed to account for these two things in its opinion, pre-agreement and the arbitration.

[00:18:46] Speaker 01:
But you didn't bring those to the board's attention in your brief.

[00:18:51] Speaker 01:
in our in our it to this court in this report to the board to the board respondents answering brief which is the response to the uh... to the exception about not giving remedies and under section ten e of the national relations act we can't even consider an argument that you didn't put before the board but you certainly can't complain that the board didn't consider it since you didn't make the argument to that what am i missing here i believe that and

[00:19:17] Speaker 05:
you'll have to, I hope you'll grant me a little deference with regard to the exact facts, but I believe that the evidence of the

[00:19:28] Speaker 05:
labor relations agreement was an attempt was made to introduce that before administrative law judge laws.

[00:19:36] Speaker 05:
And she accepted, I believe, some of the evidence, but not all of it.

[00:19:39] Speaker 05:
I do believe that that was raised as part of the hospital's exceptions to administrative law judge's order.

[00:19:45] Speaker 05:
I don't know if it's mentioned in the answering brief or only the principal brief in support of exceptions.

[00:19:49] Speaker 01:
Yes, it's made in the exceptions to the merits findings.

[00:19:52] Speaker 01:
But it is not an argument that you raise in the brief, which I have in front of me, as to why the award of negotiating costs would be improper.

[00:20:03] Speaker 01:
And yet you are complaining that the board didn't take those things into consideration in deciding that.

[00:20:10] Speaker 01:
It seems a little unfair, and perhaps outside our jurisdiction, because you didn't make the argument to the board in the first place.

[00:20:18] Speaker 05:
I would argue that we did make the argument to the board, and I understand it was in the merit section, but really our concern at this point with regard to the labor relations agreement is narrowed to a very particular point, which is the board takes a contrary and contradictory view of the existence of the labor relations agreement in its decision.

[00:20:38] Speaker 05:
To the extent that's implicated by our arguments concerning the award of negotiating expenses, it's because it was used by the board when it was convenient.

[00:20:46] Speaker 05:
And as much as they said, no, there was a pre-existing agreement, and that's why the provision of proposals early on in negotiations don't rise to the level of

[00:20:55] Speaker 05:
you know, good faith, or they don't do anything to undercut the finding of unusually aggravated misconduct.

[00:21:01] Speaker 05:
But then, for the rest of the board's decision, they, you know, refute the idea that the labor relations agreement existed.

[00:21:08] Speaker 05:
So that's really the limited capacity in which I believe that we would be at this point raising a question about the existence of the labor relations agreement today.

[00:21:17] Speaker 05:
Our focus, again, is on denial of enforcement because of the board's unsupported finding and because of the fact that the standard set by unbelievable not only is not met here, but this case falls so far below that it is a substantial departure from the board's prior precedent that goes unexplained in its decision and order.

[00:21:39] Speaker 05:
And for those reasons, this court should deny enforcement or remand this case to the board.

[00:21:43] Speaker 05:
Thank you.

[00:21:44] Speaker 01:
Thank you.

[00:21:44] Speaker 01:
We'll hear from the board.

[00:21:52] Speaker 03:
Good morning, Your Honors.

[00:21:53] Speaker 03:
Barbara Sheehy for the National Labor Relations Board.

[00:21:55] Speaker 03:
I'm going to touch very briefly, I think, on the motion to remand.

[00:21:58] Speaker 03:
I don't have anything additional to add besides what is on the panel, the way the questions were going.

[00:22:04] Speaker 03:
But I do think we would reiterate that the board, I don't think, has ever taken the view that the award of negotiation expenses is two pronged and that it's specific to these parties, the violator and the victim, that those two parties specifically have to return to the exact same bargaining table

[00:22:20] Speaker 03:
for an award negotiation expenses to be proper.

[00:22:24] Speaker 03:
And I think it is worth pointing out, Judge Pollard, you asked, isn't it the case that this union has other members?

[00:22:31] Speaker 03:
And in fact, this union has other members represented by, sorry, this union has members that it represents with this exact same employer in at least 16 different affiliates across the country.

[00:22:42] Speaker 03:
And as far as record evidence, it has at least one.

[00:22:45] Speaker 03:
What's clear in the record is it has at least one unit that it represents with Barso Hospital, which is an affiliate of the same parent company.

[00:22:53] Speaker 04:
And they're in the same situation in a follow-on case, no?

[00:22:56] Speaker 03:
Exactly, yeah.

[00:22:57] Speaker 03:
In fact, I think the brief is due in that case tomorrow in this court.

[00:23:01] Speaker 03:
I'm going to move then quickly to

[00:23:05] Speaker 03:
The argument, I guess, if I can make it out, that they're not contesting the unfair labor practices, but they're contesting the characterization that the conduct was unusually aggravated misconduct.

[00:23:20] Speaker 03:
And I think here I would just like to highlight that the

[00:23:24] Speaker 03:
It's not that the board characterized the conduct as unusually aggregate and misconduct.

[00:23:27] Speaker 03:
What it did is it looked at the litany of the disengagement, I think, which Judge Pilar pointed out, that there was absolutely no evidence of an engaged employer.

[00:23:36] Speaker 03:
They look at the totality of those circumstances from the first day that they actually bargained, which was July 3rd, the preliminary June dates were actually not bargaining.

[00:23:43] Speaker 03:
There were meeting and logistical issues up until January 2013.

[00:23:47] Speaker 03:
And at no point during that time was there a sincere effort to reach an agreement.

[00:23:51] Speaker 03:
The board said on the basis of all of that, looking at all of that, looking at the refusals to provide information fully, looking at the refusal to bargain over terminations, that that conduct rose to the level, after you found the violations, they move into then how are we going to remedy this,

[00:24:06] Speaker 03:
All of that conduct, they decided, rose the level of unusually aggravated misconduct and said, because of that, we're going to put the union back in the place it was before you had them waste all of their resources coming to the table for useless bargaining sessions for the seven or eight months that bargaining went on.

[00:24:23] Speaker 03:
And the last, the only last point, I wanted to touch very, very quickly on the pre-negotiation agreement.

[00:24:27] Speaker 03:
I think it's a point well taken, whether it was raised in the exceptions on the merits part or the, and also in the remedial portion of the exceptions.

[00:24:36] Speaker 03:
And I think the way the board decided to treat it was it was raised, and so we didn't, we just went with a different approach to it, which was the board considered it.

[00:24:44] Speaker 03:
So rather than

[00:24:45] Speaker 03:
Say the argument hadn't been made or hadn't been preserved, the board took the option of saying, we think the board considered the pre-negotiations.

[00:24:50] Speaker 01:
When you say the board, you mean lawyers for the board?

[00:24:52] Speaker 01:
Lawyers for the board, yeah, sorry.

[00:24:53] Speaker 01:
It's sort of irrelevant to us, right?

[00:24:55] Speaker 01:
Under 10E, it doesn't make any difference what you say on that question.

[00:24:58] Speaker 03:
Sure, I'm just highlighting that, but I think the board...

[00:25:00] Speaker 03:
I think on its face, the pre-negotiation agreement has no bearing at all on the conduct of Fallbrook, whether it's considered or not.

[00:25:07] Speaker 03:
That agreement was reached by the parent company in June, or no, actually it was before the certification.

[00:25:12] Speaker 03:
So it was before May.

[00:25:13] Speaker 03:
That was between the parent company and the union.

[00:25:15] Speaker 03:
Fallbrook didn't even come in and sign that until June or, I'm sorry, until July or August.

[00:25:20] Speaker 03:
And on top of that, it's not even a self-executing document.

[00:25:23] Speaker 03:
So it's not as if the union could take these three articles and say, give us our retirement funds because you signed off on three articles.

[00:25:30] Speaker 02:
Are you suggesting in your argument that the fact that the employer said, you know, we're not talking until you give us your full list of demands, is that somehow egregious?

[00:25:42] Speaker 03:
I think if you look at what the board did, the administrative law judge I think talks about it more and then the board adopts it.

[00:25:48] Speaker 03:
The administrative law judge doesn't specifically say, because I think this was a big sort of concern, exactly what does this case mean as it relates to conditioning bargaining on the submission of proposals.

[00:25:57] Speaker 03:
And the administrative law judge here does not say that that in and of itself

[00:26:01] Speaker 03:
that single incident, that single condition is evidence of bad, it is itself bad faith bargaining.

[00:26:08] Speaker 03:
What the judge says, and again adopted by the board, what the judge says is that is indicia of bad faith and then she went and looked at everything else and said on the basis of this I'm finding bad faith bargaining.

[00:26:20] Speaker 03:
But in and of itself I don't believe the case stands for the proposition that

[00:26:23] Speaker 03:
If you give off all other overtures of engaging and bargaining, but you choose to say, I'm not going to give you my proposals until you submit yours, and there's nothing else going on, I don't know that you could rely as an employer, or I'm sorry, as a union, on this case and say, that's bad faith.

[00:26:40] Speaker 03:
I don't think the case stands for that proposition.

[00:26:42] Speaker 03:
I think the administrative law judge makes it pretty clear that it's a base.

[00:26:44] Speaker 01:
Well, the administrative law judge says, I find the totality of the misconduct

[00:26:49] Speaker 01:
put up a series of roadblocks, and then list all of it.

[00:26:51] Speaker 01:
So obviously, you're obviously right about that point.

[00:26:55] Speaker 01:
I don't think the other side's not suggesting that you're wrong about that point.

[00:26:59] Speaker 03:
OK, all right.

[00:27:00] Speaker 01:
Not on the merits.

[00:27:01] Speaker 01:
Now, we're talking about they are picking piece by piece at the remedy here.

[00:27:07] Speaker 01:
Sure.

[00:27:07] Speaker 01:
But they're not even appealing the merits decision.

[00:27:10] Speaker 04:
No, right.

[00:27:12] Speaker 04:
So their concern, I mean, what's your response to the notion that this decision

[00:27:19] Speaker 04:
exemplifies the difficulty for employers of figuring out where the line is between mere bad faith and unusual misconduct.

[00:27:29] Speaker 04:
Say an employer says, I'm fine with being found in bad faith.

[00:27:32] Speaker 04:
I don't believe in unions.

[00:27:33] Speaker 04:
I don't believe in the NLRA.

[00:27:36] Speaker 04:
And I'm just going to not do anything.

[00:27:39] Speaker 04:
And if I have to pay for that at the end of the day, fine.

[00:27:43] Speaker 04:
But I'm going to stop short of unusual misconduct.

[00:27:47] Speaker 04:
Would you get that?

[00:27:48] Speaker 03:
I don't know that I'm in the position to be providing advice for how to stop just shy of committee members.

[00:27:53] Speaker 01:
Well, when you say that that is what your other three cases are about, that's willful.

[00:27:58] Speaker 01:
That's, I don't believe in the International Labor Relations Act and I'm not going to follow it.

[00:28:02] Speaker 01:
That seems a pretty clear case.

[00:28:04] Speaker 03:
Right, and I think that it is difficult.

[00:28:05] Speaker 01:
Regardless of what else they do.

[00:28:06] Speaker 03:
Sure, I think it is difficult to administer the test, but I think as Judge Garland, as you pointed out, that that's particularly in the province of the board to look at.

[00:28:13] Speaker 03:
I guess here, I'm going to answer Judge Bellard's question first.

[00:28:16] Speaker 03:
I guess what I would say first is to any employer, go to the table and bargain.

[00:28:20] Speaker 03:
I think that's pretty simple advice, and I would say do it as the statute requires, which is in a sincere belief, to reach an agreement.

[00:28:26] Speaker 03:
If that means you want to engage in hard bargaining, if that means that you want to

[00:28:30] Speaker 03:
not bend beyond what your positions will permit, that's fine, but just do it in good faith.

[00:28:35] Speaker 03:
But to Judge Garland's point, no, I do think that it is difficult to administer the test, but the fact is that that's the test.

[00:28:42] Speaker 03:
Unbelievable provides the test, and it's been there since 1995, and it's not my understanding that they're actually challenging the test itself, because it's not in their brief.

[00:28:50] Speaker 03:
So let's accept that the test is unusually aggravated misconduct, but that's particularly within the board's expertise to determine on the totality.

[00:28:58] Speaker 03:
Don't strip away like they do before this court, where they go point, but first they say, we're not contesting the violations.

[00:29:05] Speaker 03:
And then they go through and they parse each individual violation and say, that's not bad faith.

[00:29:10] Speaker 03:
then we did this.

[00:29:11] Speaker 03:
But that's not bad faith.

[00:29:13] Speaker 03:
And that's not what the board does.

[00:29:14] Speaker 03:
The board looked at the totality of the circumstances and said you engaged in unusually aggravated misconduct.

[00:29:20] Speaker 03:
You didn't submit any proposals until eight sessions in after the mediator was called in.

[00:29:25] Speaker 03:
You walked out of four bargaining sessions.

[00:29:27] Speaker 03:
I think there's some dispute about that, but the record is pretty clear.

[00:29:29] Speaker 03:
There were four.

[00:29:31] Speaker 03:
They walked out on

[00:29:33] Speaker 03:
Let's see, they walked out on September 12 without explanation.

[00:29:37] Speaker 03:
They walked out on the one with the management official there, where you're right, which was on October 11th.

[00:29:44] Speaker 03:
They walked out on December 28th after five or six minutes.

[00:29:47] Speaker 03:
And then they walked out on January 8th after 15 minutes.

[00:29:49] Speaker 03:
So I guess there's some dispute as to whether it was a five-minute meeting or a three-minute meeting.

[00:29:54] Speaker 03:
Did it count?

[00:29:55] Speaker 03:
But there were four sessions that they walked out on.

[00:29:59] Speaker 03:
Unless there are any other questions, I don't have

[00:30:02] Speaker 01:
Okay, is there any time left?

[00:30:04] Speaker 03:
Thank you, and we would, oh, sorry.

[00:30:06] Speaker 03:
No, and we would request, obviously, full enforcement decision and a denial of the command.

[00:30:09] Speaker 01:
We guessed that was your position, yeah.

[00:30:13] Speaker 01:
All right, you're over your time.

[00:30:14] Speaker 01:
As in the last case, I'll give you another minute.

[00:30:21] Speaker 05:
With my brief remaining time, I'd like to just briefly address the reasons why this court should deny enforcement or alternatively remand the case to the board.

[00:30:29] Speaker 05:
The board's attorney herself admits that the standard has become difficult to manage because there is no clear

[00:30:36] Speaker 05:
understanding as evidenced by the lack of explanation in the board's decision for why they would depart from the standard set forth in Unbelievable, which is a high bar for extraordinary cases of unusually aggravated misconduct in a case like this, where there is a reason to believe that there was at least legal precedent to back up the hard bargaining approaches, if you would want to call them that, taken by the hospital.

[00:31:01] Speaker 05:
For those reasons, the board has failed to uphold its administrative duty to explain its decision-making and explain any departures it makes from its precedent, rendering its decision in this case arbitrary and capricious.

[00:31:16] Speaker 02:
I mean, Council, just to remind you, you're suggesting a substantial departure from precedent.

[00:31:23] Speaker 02:
I don't get it, actually.

[00:31:26] Speaker 02:
They are tempted to remain faithful to unbelievable, and they say that the record shows that the respondent deliberately acted to prevent any meaningful progress in bargaining.

[00:31:38] Speaker 02:
And that is in the nature of woefulness.

[00:31:41] Speaker 02:
And so, yes, there are, there's better evidence of woefulness, different evidence of woefulness, but the board found it here.

[00:31:49] Speaker 02:
that there was an intention by the employer, deliberately, to act in a way to prevent bargaining from going forward.

[00:31:56] Speaker 02:
They had perfectly consistent with what they said.

[00:31:58] Speaker 02:
There's nothing in the caseload that says, you have to have an employer who starts out by confessing, I hate the NLRA, I hate the NLRB, and I hate unions.

[00:32:09] Speaker 02:
And so, watch me.

[00:32:12] Speaker 02:
Because everything I do now is going to be consistent with that.

[00:32:17] Speaker 05:
No, Your Honor, but the test is set forth by unbelievable and- I'm looking at the test and I'm looking at the board's planning.

[00:32:22] Speaker 02:
Respondent deliberately acted to prevent any meaningful, but it's egregious.

[00:32:27] Speaker 05:
The board's finding is it's egregious, and we attack that finding based on the fact it's not supported by the evidence in the record as a whole.

[00:32:36] Speaker 05:
And then we attack the application given the difference of the cases on the standard of arbitrary and capricious decision-making by the board.

[00:32:43] Speaker 05:
For those reasons, we believe the case should be denied enforcement or remanded.

[00:32:47] Speaker 01:
We'll take the matter under submission, and we'll take a break for the next case.