[00:00:00] Speaker 03:
I believe section three says, the language on it says matters respecting the provisions of the plan.

[00:00:06] Speaker 02:
The provisions of the plan, it's not matters respecting provisions that are not part of the plan.

[00:00:12] Speaker 03:
And I would argue under its natural interpretation, the extension of the identical same benefit to the end of the coverage year is a matter respecting the provision of the plan.

[00:00:21] Speaker 03:
Even though it's not in the plan?

[00:00:22] Speaker 03:
Even if it's not, even if it's treated as a separate plan, I see my time's expired.

[00:00:25] Speaker 03:
Thank you very much.

[00:00:32] Speaker 01:
Good morning, Your Honors.

[00:00:33] Speaker 01:
Greg Laro for the National Labor Relations Board.

[00:00:36] Speaker 01:
Going back to the issue you were discussing, the unilateral elimination of the benefits.

[00:00:41] Speaker 01:
As Your Honors were discussing this morning, that elimination of benefits on January 1, 2010 was independent

[00:00:49] Speaker 01:
of the contract language in which they're relying.

[00:00:51] Speaker 01:
As you were discussing, the contractual benefit, the benefit plan referred to in the contract, was terminated on August 1st, 2009, months prior to the termination here.

[00:01:03] Speaker 01:
And this idea that the contract still covered anything respecting the plan

[00:01:09] Speaker 01:
seems false and unlikely.

[00:01:12] Speaker 02:
So we're in August 2009 and we have a new source of the short-term disability benefits.

[00:01:19] Speaker 02:
We're no longer under the plan.

[00:01:21] Speaker 02:
Why would an employee have an expectation that that benefit, which was the same as they had before, could not be unilaterally withdrawn?

[00:01:30] Speaker 02:
It always had been before.

[00:01:32] Speaker 02:
Before August 2009, no reasonable expectation.

[00:01:36] Speaker 02:
that there wouldn't be unilateral change and discontinuation.

[00:01:41] Speaker 02:
Why would they have any different expectation after August 2009?

[00:01:46] Speaker 01:
Well, two things, Your Honor.

[00:01:47] Speaker 01:
One, as was discussed this morning, this wasn't some one-time stopgap.

[00:01:51] Speaker 01:
This was a benefit that was provided in some form.

[00:01:54] Speaker 01:
continuously and regularly for several months after the termination of the plan.

[00:01:59] Speaker 01:
And there was no notice of potential termination until what the board found was an unlawful series of statements that it was being terminated because the employees were union represented.

[00:02:11] Speaker 01:
So there was nothing.

[00:02:12] Speaker 00:
The employees thought it was under the plan.

[00:02:14] Speaker 00:
Even after August, even if they were wrong about that, if they thought it was under the plan, then they would have had the expectation under the agreement that it could have been unilaterally.

[00:02:22] Speaker 01:
None of that would change the settled law requiring bargaining over mandatory terms.

[00:02:29] Speaker 01:
And there's no dispute here that this was a mandatory term.

[00:02:32] Speaker 01:
The only question is,

[00:02:33] Speaker 01:
Did the contract privilege that unilateral action, even though what was terminated was not benefits under the plan?

[00:02:40] Speaker 01:
And that's all I'm trying to make clear, and I think your honor stated it this morning.

[00:02:44] Speaker 01:
What was terminated on January 1st, 2010, was not benefits under the plan.

[00:02:48] Speaker 01:
It was something else.

[00:02:50] Speaker 01:
It was separate from the plan.

[00:02:53] Speaker 00:
I mean, they're sort of between a rock and a hard place.

[00:02:55] Speaker 00:
As Mr. Sauer said, they wanted to exercise the unilateral way to terminate this benefit, but they wanted to do it in a non-disruptive way to the employees.

[00:03:05] Speaker 00:
They wanted to fill out the plan year.

[00:03:07] Speaker 00:
Is that impermissible for them to do and to retain the unilateral way to terminate?

[00:03:14] Speaker 00:
I mean, should they have come to you before August and said,

[00:03:17] Speaker 00:
What do you think?

[00:03:18] Speaker 00:
Can we do this?

[00:03:19] Speaker 00:
Or should they have told the employees we're offering this as a gratuity?

[00:03:24] Speaker 00:
How should they have done it to be able to accomplish what seems like a reasonable objective on their part?

[00:03:29] Speaker 01:
Yes, Your Honor.

[00:03:29] Speaker 01:
They could accomplish their objective legally by honoring their duty to bargain.

[00:03:36] Speaker 01:
They could have come to the union and said, this is what we'd like to do.

[00:03:39] Speaker 01:
They could honor their duty to bargain.

[00:03:41] Speaker 02:
In August 2009, before they extended the unilateral benefit,

[00:03:45] Speaker 01:
Well, I think in extending the benefit, if what they're saying is we're exercising our right to unilaterally terminate the plan, I'm assuming there is such.

[00:03:53] Speaker 01:
But they want to extend or unilaterally have different benefits.

[00:03:56] Speaker 01:
There is a duty to bargain over changes to mandatory subjects of bargaining.

[00:04:01] Speaker 02:
Is there a duty to bargain before they extend that benefit in August 2009?

[00:04:06] Speaker 02:
Or can they do that gratuitously and unilaterally?

[00:04:09] Speaker 01:
where the mandatory duty to bargain over mandatory subject applies, you have to do it with notice and an opportunity to bargain.

[00:04:17] Speaker 00:
But what if they characterized this, this is a one-time thing, it's just a gratuity, it's just a stopgap, if they characterized it that way and said, look, we're just giving you guys a bonus here to help out, they wouldn't have had to bargain over that.

[00:04:31] Speaker 01:
Perhaps not, those are not the facts here, but if those were the facts, the board would have to consider

[00:04:36] Speaker 01:
whether that made it analogous to case law saying an occasional but not regularly given Christmas bonus is not necessarily a term of condition of employment.

[00:04:45] Speaker 01:
But those aren't the facts here.

[00:04:47] Speaker 01:
In the board's view, based on the facts here, this was a benefit, the gratuitously given one, that they couldn't remove without bargaining.

[00:04:54] Speaker 01:
And that as we've discussed, their termination of the benefit was not covered by the contract number 60.

[00:05:01] Speaker 00:
Can I ask you about the

[00:05:02] Speaker 00:
the board's finding about the employer's facilitation of the decertification effort.

[00:05:08] Speaker 00:
There were, it was a little bit shifting about what the ground was.

[00:05:12] Speaker 00:
Can you just tell us, was it that the company coercively encouraged the employees to engage in a decertification process and what supports that?

[00:05:24] Speaker 01:
The theory is that the employer, through two of its supervisors, directed the employee who started the petition to go back and get more signatures, and that that direct supervisory exhortation could only propel the decertification campaign forward.

[00:05:41] Speaker 01:
that wherever it had gotten to by that point, the employer was interjecting themselves in the process and propelling the campaign forward, and that that was the violence.

[00:05:49] Speaker 02:
Well, being part of the process isn't unlawful, right?

[00:05:53] Speaker 02:
No.

[00:05:53] Speaker 02:
So what was it about this interaction that made it unlawful?

[00:05:57] Speaker 01:
Well, as the board explained, it wasn't just the interaction or the brief conversation that was unlawful as far as asking an employee a question, you know, how many signatures do you have?

[00:06:07] Speaker 01:
The board didn't find that that question was unlawful.

[00:06:10] Speaker 01:
When the employer stepped over the line was when they did more than just give information.

[00:06:14] Speaker 01:
They just didn't say, just so you know, you need to get up to 50% if you're not there, you might want to consider getting more.

[00:06:20] Speaker 01:
They said,

[00:06:21] Speaker 01:
Go get more signatures.

[00:06:23] Speaker 01:
This was a direct, this was a director from a supervisor and the board reasonably interpreted that as coercive because the employer is directly propelling the campaign forward and that's what they can't do.

[00:06:34] Speaker 01:
Even if the employees independently chose to start the campaign, the employer can't step in as it did here and propel it forward.

[00:06:42] Speaker 01:
And that's the board's theory here.

[00:06:48] Speaker 01:
But also, I realize there's some other violations here we haven't discussed in case the court has other questions.

[00:06:53] Speaker 01:
And I think if these violations are found to have merit, I think that the board's finding of an unlawful withdrawal of recognition is well supported.

[00:07:01] Speaker 01:
And as you know, there are two independent grounds there.

[00:07:04] Speaker 01:
One is the violation we just discussed, directly propelling the campaign forward.

[00:07:09] Speaker 01:
is directly linked to the petition itself.

[00:07:12] Speaker 01:
So it conclusively taints the petition under settled law.

[00:07:15] Speaker 01:
And in addition, the board also found, under the master slack factors, that the multiple serious violations here had a causal nexus to the loss of employee support.

[00:07:25] Speaker 01:
But the court could infirm under either ground.

[00:07:29] Speaker 01:
So unless the court has further questions, I thank the court for its time.

[00:07:33] Speaker 01:
Thank you.

[00:07:34] Speaker 01:
Thank you.

[00:07:37] Speaker 02:
Two minutes for rebuttal.

[00:07:38] Speaker 03:
Thank you, Your Honor.

[00:07:39] Speaker 03:
And I'd just like to return to a point that was made regarding the termination of benefits.

[00:07:44] Speaker 03:
I agree.

[00:07:44] Speaker 03:
I think that it is impossible to say that the employees would have had an implied term or condition of employment of indefinitely continuing benefits that are subject to mandatory bargaining based on an expectation and a collective bargaining agreements that authorizes termination of those at the employer's sole discretion at any time.

[00:08:02] Speaker 03:
So I think that that one is sufficient to address the board's

[00:08:07] Speaker 03:
position in its 2015 opinion that because this was a new plan, I dispute that it actually is a new plan.

[00:08:14] Speaker 03:
I believe it's an extension of benefits pursuant to the same plan because the testimony was that we were providing the vanguard benefit through a separate third-party administrator.

[00:08:23] Speaker 03:
So I think it naturally falls under the cancellation language that's authorized both in the reservation of rights clause and Article 3 of it.

[00:08:30] Speaker 00:
But even if it were... The difficulty for us is that the board didn't so find.

[00:08:35] Speaker 00:
The difficulty for us is that that's not what the board felt.

[00:08:37] Speaker 03:
That is true, but I believe in this particular case, Your Honor, we are in, this is de novo review under the contract coverage doctor, and this court applies standard traditional tools of contract instruction to address this issue.

[00:08:53] Speaker 03:
So really, on the issue of the contract interpretation, there is no real deference to the board that's at stake here.

[00:08:59] Speaker 03:
Now, and the board really made no specific finding that this was an implied condition of employment.

[00:09:04] Speaker 03:
That's something that's been discussed for the first time on appeal in the board's brief before this court.

[00:09:10] Speaker 03:
So I don't think there's any factual finding for the court to defer to that, oh, the employees had some reasonable expectations that this would continue.

[00:09:18] Speaker 03:
And I'd emphasize the standard in the board's own cases that for something to be an implied term or condition of employment, it has to be a, quote, established practice.

[00:09:26] Speaker 03:
It has to occur regularly over an extended period.

[00:09:29] Speaker 03:
And for both reasons, both that this was both envisioned by the company and communicated to the employees all along as something that would terminate on January 1st, and because it was something that was being offered pursuant to a collective bargaining agreement that authorized unilateral termination at any time, couldn't possibly have been an implied term that triggered mandatory bargaining.

[00:09:49] Speaker 00:
Mr. Sauer, I'm just curious, why would a company decide to offer the time off benefit to its non-union employees and not to its union employees?

[00:09:59] Speaker 03:
I don't know the internet personally.

[00:10:00] Speaker 03:
I don't know that there's evidence in the record for that.

[00:10:03] Speaker 03:
I mean, there'd be reasons to speculate.

[00:10:04] Speaker 03:
I believe the time off policy is a policy, not an ERISA plan.

[00:10:08] Speaker 03:
So I think there's maybe some regulatory benefits to that.

[00:10:12] Speaker 03:
Also, the way that they function is different.

[00:10:14] Speaker 03:
The time off policy is a time bank.

[00:10:17] Speaker 03:
So in a sense, it gives the employees an incentive not to overuse the benefit and so forth.

[00:10:21] Speaker 03:
But I do think there's a rough equivalency, so to speak, between the two policies.

[00:10:27] Speaker 02:
Thank you, Your Honor.

[00:10:29] Speaker 02:
The case is submitted.