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Case number 15-1081 at L, Iron Tiger Logistics, Inc.

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Petitioner versus National Labor Relations Board.

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Mr. Krakowski for the petitioner, Ms.

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Burda for the respondent.

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the court.

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My name is Tom Krakowski.

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I represent the petitioner.

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Iron Tiger here.

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I would like to reserve two minutes for rebuttal if it's all possible.

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Thank you.

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It's elementary that the board's decision could be upheld, but it's not so differential that this court will rubber stamp a board decision in which the board ignores precedent and, as important, it errs in terms of citing cases or the facts in this case.

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The board in this case ignores truth.

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The Supreme Court's decision had dealt with information requests.

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The court in that case says we should look at all the circumstances of the case before we make a decision.

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to this case is the proposition that the board does not have authority to conclude that if an union seeks information which is presumptively relevant, an employer has an obligation to respond one way or another within a reasonable period of time.

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I disagree with the board's decision on that for two reasons.

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Wait a minute, you think the board may not

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Conclude that as a general proposition?

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Yes.

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Why?

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Because in order for the board to determine that a company is a law violator, they've got to find that they've bargained at that fate.

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And that precedes certain elements.

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One is that it has to be presumptively relevant.

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It's not presumptively relevant in this case.

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And number two, even if it was presumptively relevant.

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Oh, now you're getting into the question of whether it's presumptively relevant.

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Assuming it is presumptively relevant, is it your

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that if it is presumptively relevant, the employer has an obligation to respond within a reasonable period of time?

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Yes, correct.

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It's the abuse of discretion to do so held.

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In other words, well, then what is your position that the board must conclude that it's relevant before it concludes the employer?

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I'm not sure exactly what your position is.

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Is your position, is the board can't make a per se rule one way or another?

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That's correct, Your Honor.

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Even if it's relevant?

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If it's relevant, that wouldn't be a per se rule, because you have to take into consideration all the circumstances that are true.

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No, wait a minute.

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If the board said, if the information is relevant, the employer must respond on a reasonable period of time, you say the board could or could not do that?

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In the context of Truett, they cannot do that.

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Truett is actually a pretty strong case for the, I'm surprised

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That's correct in the court.

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That's the strangest case for you.

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That's one of the worst cases from the employer's point of view, and you're citing that.

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The court took into consideration through all the facts and circumstances of the case and established rule of totality of circumstance report.

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This is a per se rule now after Truett that if employers

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That's a per se rule, is it not?

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It would be a per se rule, yes.

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It is a per se rule.

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That would be a per se rule, and that would not be allowed under the National Appellations Act.

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Wait a minute.

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Truitt says, it's Supreme Court, Truitt said yes.

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But they took it into consideration more than just the inability to pay.

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In that case, in the bargaining context, they looked at the entire context of what the union was proposing, what the employer was proposing.

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Isn't that funny?

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I teach labor law, and I always teach when the Truitt stands for the proposition that an employer says he can't afford,

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the union's wages increased, he musters, she musters.

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Show the books.

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That's the rule of the court.

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That's a per se rule.

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I'm surprised you're citing that.

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OK, but this court in Cincinnati newspaper in 1991 decided that an issue incurring interning per se.

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And the court in that case says that the act itself precludes almost any argument that an unfair labor practice in the bargaining context is a per se rule.

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That's this court's decision in 1991.

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And it's still good law in this circuit, as well as I think most other circuits.

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Well, they not only ignored Truett, which I think requires a totality circumstance, but secondly, the board ignored its own decision in Disneyland.

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It's a subcontracting case.

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In that case, the board says that information regarding the bargaining employees is not presumptively irrelevant.

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That's exactly the opposite they held in this case.

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It's 180 degrees difference.

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Wait a minute, wait a minute.

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They did not hold, is it the first

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The first seven questions were considered not presumptive.

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Because they involve potentially subcontracting.

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They involve non-bargaining employees.

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Well, it involved potentially subcontracting, right?

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Correct.

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So the board therefore followed Disneyland there.

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They did.

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In part, it's true.

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Then why are you saying it's inconsistent?

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Because in the Disneyland decision, the court, the board says that information regarding some contracting and even information regarding the bargaining employees and their terms and conditions of employment is considered not to be presumptively relevant.

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That's 180 degrees different than what they found in their entire case.

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In the case here, the request information was information regarding bargaining employees, the terms and conditions of their employment.

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It was, but wait, but in Disney, are you still talking about Disney?

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Sorry?

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Are you still talking about Disney?

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I'm talking about Disney, yes, sir.

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Okay, but here, the last three items of the request for information.

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What were the letters?

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IJK?

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Whatever they were.

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The last three.

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Yes, sir.

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They didn't ask about, the board points this out, they didn't ask about subcontracting.

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They asked about for information about the loans assigned to Iron Tiger employees.

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That's what those three ask about.

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So they didn't ask about... H-I-N-J, they asked for information.

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H-I-N-J asked specifically about the loans assigned to bargaining unit employees.

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Correct.

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It doesn't say anything about subcontracts.

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That's the point.

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And here's the language in Disney... Wait, wait.

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You agree with me or not?

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I agree.

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So this is not Disney?

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I agree with your statement that H, I, and J dealt with information regarding the bargaining employees.

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Okay, so that's presumptively relevant information under the board standards, correct?

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No.

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No?

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Because here's what Disney says, information about subcontracting agreements, even those related to bargaining employees... Oh, stop.

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You're not responding to, forgive me, to Judge Taylor.

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Suppose the last three questions were presented by themselves.

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I'm sorry, excuse me.

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Suppose the last three questions the union presented were presented by themselves.

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Yes.

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Would that have been presumptively relevant?

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No.

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Why?

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Because as the court says, the board says, that the employee's terms of conditional employment is not presumptively relevant in Disneyland.

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That wouldn't have even have evolved in Disneyland.

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Suppose the last three questions had been presented by themselves.

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not with regard to any allegation of subcontracting or contracting back to movers.

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Yes, sir.

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Just the last three questions have been presented by themselves.

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Yes.

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Why was that not presumptively relevant?

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Because Disney... It's got nothing to do with Disney.

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It's got nothing to do with subcontracting.

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There's other reasons why it's not... Don't leave this so quickly.

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Here's what Disney says, quote, information about subcontracting agreements, even those relating to bargaining with employees, is not presently relevant.

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The case is about subcontracting information.

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The last three items of the mail-in request do not ask about subcontracting.

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They ask about the loans assigned to bargaining unit employees, correct?

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Correct.

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So what's this case got to do with Disney?

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Because you didn't finish the quote in Disneyland, because it says the terms and conditions of employment.

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But Council, Disney would not be relevant if the last three questions were asked by themselves.

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Don't you agree to that?

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No, you don't.

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Why would Disney be relevant if the last three questions were presented by themselves?

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First off, the predicate to make sure it's a presumption has to have some basis in terms of relevancy.

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The Ministry of Law and Justice in this case made it specific that there's no allegation here, there's no claim that the employees were underpaid, there's no claim that the drivers were improperly considered.

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It's not relevant ab initio.

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He's saying from the beginning of time that request made on May 11th was not relevant because there's no nexus.

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In order to establish a presumption, whether we're looking at a presumption in McDonald-Douglas analysis for Title VII or any presumption, there has to be a predicate.

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There has to be a legitimate predicate.

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In this case, there is no legitimate predicate.

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Whatever the bargaining employees do by way of what roads they have, what they're taking, where they're going, it doesn't prove anything.

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It just proves in fact that they did.

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I think this argument is more relevant to us than the argument based on Disney.

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I think they're all... In other words, because you really have to focus on these last three by themselves.

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All right, I think I understand.

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And I have, in terms of, in order to create that presumption, basically they gotta sit down and say, it has to be some nexus.

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There has to be a predicate to that presumption.

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You just can't say, if they ask the question on H, J, and I, what color hair they have or what their age is, how would that be presumably relevant?

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It may ask questions regarding the bargaining unit, but it's not their terms of conditional employment.

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Can I ask you a question, and that is, how hard would it have been for the companies to just say, not relevant, we're not going to respond?

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The day after the union made the request, they had that conversation, and the lawyer for the company said, the information you're asking for is a lot of BS.

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In response to that, the voice in Anderson, who's the individual who's the union person, says, I know this, but I want it.

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The administrative lawyer in that case said in terms of his analysis that- I guess I'm gonna go back to my question again, which was, how hard would it have been to send a letter back to have a record

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of you saying we're not going to respond because it's not relevant.

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You wouldn't have.

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We would have done that.

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We did it December 27th, four hours later.

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To be more precise, why couldn't they have just said, right after the May 11th letter, what they said in September?

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Wouldn't that have solved the problem completely?

[00:11:05] Speaker 04:
Could have, yes.

[00:11:05] Speaker 02:
OK, well, then wouldn't, so.

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The board just says the employer here had an obligation to respond to the May 11th promptly, and although its response in September was adequate, it wasn't prompt.

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That's all this case is about, right?

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I think there's more to it.

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But you're right in terms of could have done, could have, should have, would have, but the fact of the matter is, if you read over the case and the facts in this brief that was presented, in terms of it was abusive, the union said before they made an information request, I will make living hell for you if you don't restate these three employees, they went to the entire process and lo and behold, Vice Anderson was true to his word.

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He made it hell for the company by making the request, 29 page response.

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The second response, 10,000.

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I'm not quite sure how it's hell if all you have to do is say,

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No.

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Well, I think that Tom Jones, the day after request, said what you're asking for is a bunch of BS.

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Was this in response to the May 11th response?

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Yes, it was.

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The day after?

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The day after, yes.

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And the administrative law judge accepted that statement.

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In effect, the union never gave a reason for why it was BS and why you should ask for it.

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He said, there's another reason why I find the information was irrelevant.

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And I take a position irrelevant to have an issue.

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request was made.

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There is a conversation between Anderson and the union representative and the attorney for the company, Tom Jones, right?

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That's correct, Your Honor.

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And what does Tom Jones say with respect to the request of May 11th?

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He said, quote, the information you're asking for is a bunch of bullshit information.

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Is that the same as saying it's not relevant?

[00:12:54] Speaker 04:
I hope so.

[00:12:55] Speaker 02:
Well, I mean, no, that seems to me that's the question.

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I mean, that's a good question.

[00:13:03] Speaker 01:
I thought it was answered by this record where there was testimony that the use of the phrase BS went frequently in conversations between these two people, so it really doesn't seem to have had the legal import you want to give it right now, especially given the union person responded, yes, but I need it.

[00:13:21] Speaker 04:
But then the administrative law judge answers that very question.

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When he says that agreement that the information sought was bullshit, absent an explanation regarding the information was needed, confirms my finding that the information requested was irrelevant.

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But he originally found it was presumptively relevant, and that's why he said,

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your client violated the act because it didn't respond promptly to presumptively relevant information.

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True, it was ultimately considered irrelevant or not relevant, but his finding was that the last three requests in the NAIL 11th letter were presumptively relevant, triggering the obligation to respond promptly.

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And that's what the dissent... You disagree with what I just said?

[00:14:04] Speaker 04:
I don't... That's what he said.

[00:14:05] Speaker 04:
Okay.

[00:14:06] Speaker 02:
As far as the... I know what the dissent said, but... I'm sorry?

[00:14:09] Speaker 02:
You know, we're reviewing the board's decision, not the dissent.

[00:14:11] Speaker 02:
Yes, Your Honor.

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The district doesn't agree with that.

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The dissent has the same view you do, which is that there should be no obligation to respond at all if the information is not relevant.

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And the board has a different view of that.

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Which brings us back to Judge Silverman's very first question.

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what's wrong with that requirement?

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That an employer has an obligation to respond promptly to a request for presumptively relevant information.

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And I don't want to summarize board member Hayes' dissent in iron one, but he says that his attorney general counsel and the board have said no cases support their position where the information is irrelevant.

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It's all relevant, he says.

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Therefore, it allows for the hectoring of unions to basically put themselves in position.

[00:14:56] Speaker 03:
The board could certainly come, isn't it true,

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wouldn't it?

[00:15:09] Speaker 04:
No.

[00:15:10] Speaker 04:
Why?

[00:15:11] Speaker 04:
Because if you're looking at the totality of the circumstances and the harassment that... I'm not necessarily, I'm not talking about this case necessarily.

[00:15:17] Speaker 03:
You may have a better argument, which I will explore with counsel.

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But with respect to the position of law, the majority says if it's presumptively relevant, the company must respond within a reasonable period of time.

[00:15:30] Speaker 03:
The sentence says, you know, it should depend on whether the information is actually relevant.

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So there are two different positions.

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Why don't we have to defer to whichever is the majority viewed under our deference to the board?

[00:15:46] Speaker 04:
In the latter case, in terms of Hayes' dissent, basically there's no law violator there.

[00:15:52] Speaker 04:
In the prior example, there's a law.

[00:15:54] Speaker 03:
You're not answering my question, are you, really?

[00:15:56] Speaker 03:
The question is, why shouldn't we defer to the majority board's position that if a union requests presumptively relevant information

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a company must respond within a reasonable period of time.

[00:16:12] Speaker 03:
Why should we not defer to that proposition?

[00:16:13] Speaker 04:
Because that's a per se rule.

[00:16:17] Speaker 03:
And your argument from Truett, which

[00:16:21] Speaker 03:
is really interesting.

[00:16:23] Speaker 04:
It doesn't matter.

[00:16:24] Speaker 04:
In fact, it says that you look at the totality circumstance, just the opposite per se.

[00:16:28] Speaker 04:
In this court in Cincinnati, the newspaper says the same thing.

[00:16:31] Speaker 04:
Far be it for any court to basically establish a per se rule in a bargaining case, or determine what is good or bad faith bargaining without an entire review of all the circumstances.

[00:16:41] Speaker 02:
OK.

[00:16:41] Speaker 02:
Have you done mine?

[00:16:43] Speaker 02:
Yes.

[00:16:43] Speaker 02:
OK.

[00:16:43] Speaker 02:
Thank you.

[00:16:43] Speaker 02:
We'll hear from the board.

[00:16:50] Speaker 00:
May it please the court?

[00:16:52] Speaker 00:
Can you hear me?

[00:16:53] Speaker 00:
May it please court Ruth Burdick appearing for the National Labor Relations Board.

[00:16:58] Speaker 00:
I can tell from the argument so far that this court has a very strong understanding of this case.

[00:17:02] Speaker 03:
But you know what troubles me, counsel?

[00:17:04] Speaker 03:
Why are those last three questions presumptively relevant?

[00:17:10] Speaker 03:
I looked at the record, and it's in response to the company's letter, item five.

[00:17:19] Speaker 03:
And these are 10,000

[00:17:26] Speaker 03:
And there are questions about these 10,000 deliveries that took place.

[00:17:31] Speaker 03:
I'm trying to figure out what the devil's the relevance of it, presumptive of it.

[00:17:35] Speaker 03:
What is the relevance?

[00:17:37] Speaker 03:
The Union never explains it in the September, in the discussions after September 27th.

[00:17:43] Speaker 03:
The Union never explains why it wants this, why it's remotely relevant.

[00:17:49] Speaker 03:
And council uses the example, which was one I thought of.

[00:17:52] Speaker 03:
Suppose the union asked, how many employees color their hair?

[00:17:58] Speaker 03:
Would that be presumptively relevant?

[00:18:02] Speaker 00:
Well, that would be a very outlier of a question, obviously.

[00:18:07] Speaker 00:
And I must say that usually, typically, presumptively relevant information is with regards to any information with regards to bargaining unit.

[00:18:17] Speaker 03:
Well, that's about bargaining unit.

[00:18:19] Speaker 03:
How many people comb their hair?

[00:18:22] Speaker 00:
Well, that would be a situation where it would be very simple and very minimal burden for the employer to keep the note and respond.

[00:18:28] Speaker 03:
So even in that case, the employer has to respond.

[00:18:30] Speaker 03:
Is that your view?

[00:18:31] Speaker 03:
Anything that relates to employees in the bargaining unit has to be responded to, is presumptively relevant.

[00:18:38] Speaker ?:
Anything.

[00:18:39] Speaker 00:
Well, I have to stick with the facts and the holding at the board in this case.

[00:18:42] Speaker 03:
Well, that doesn't work.

[00:18:43] Speaker 03:
I'm asking you what the principle involved.

[00:18:45] Speaker 00:
In my opinion?

[00:18:46] Speaker 03:
In my opinion.

[00:18:46] Speaker 00:
Yes.

[00:18:47] Speaker 00:
In my opinion, what we have here is a presumptive, presumptively relevant information needs to have a prompt response.

[00:18:54] Speaker 03:
Well, wait a minute.

[00:18:54] Speaker 03:
Well, why is it presumptively relevant?

[00:18:57] Speaker 03:
That's what I couldn't figure out.

[00:18:58] Speaker 03:
No, I understand.

[00:19:00] Speaker 03:
that these last three questions do not relate to movers.

[00:19:04] Speaker 03:
So it doesn't relate to subcontracting.

[00:19:07] Speaker 03:
Well, I'm trying to figure out why the last three questions are not just harassment.

[00:19:11] Speaker 03:
They look like harassment to me.

[00:19:13] Speaker 00:
Well, see, the board describes on DNO 1, the first page of its decision, that this information request came and was originated from the March 16th

[00:19:24] Speaker 00:
email from the union that raised a concern with regards to the dispatch procedures.

[00:19:30] Speaker 00:
And with regards to that the union was obviously, it turns out,

[00:19:35] Speaker 00:
under operating under a misconception of who had contracts, who had the ability to dispatch, and it believed that Iron Tiger could dispatch either to the employers, to the unit employees, or outside of the employees.

[00:19:51] Speaker 00:
So the original request.

[00:19:52] Speaker 03:
Well, Iron Tiger can dispatch its employees.

[00:19:55] Speaker 03:
That's what this is.

[00:19:56] Speaker 03:
But that union knows that.

[00:19:58] Speaker 03:
I don't understand why this massive

[00:20:01] Speaker 03:
10,000 references is relevant to anything.

[00:20:04] Speaker 03:
The union in the meeting never suggests the relevance.

[00:20:09] Speaker 03:
So I'm trying to figure out why it's presumptively relevant.

[00:20:11] Speaker 03:
It cannot be that a union can request any information concerning bargaining unit employees.

[00:20:18] Speaker 03:
including my hypothetical whether anybody colors their hair, and that's presumptively relevant.

[00:20:23] Speaker 00:
Well, here, Your Honor, we're blending the questions of relevance and presumptive relevance.

[00:20:27] Speaker 00:
And the board's standard for presumption of relevance that is recognized by this court is a broad discovery-type degree of relevance.

[00:20:35] Speaker 00:
And the purpose of that is to cover and include information that would help the parties bargain, reach agreement, reach arrears.

[00:20:44] Speaker 03:
But nobody in this case, counsel, nobody in

[00:20:49] Speaker 03:
ever describes why this information would be presumptively relevant, other than to say it involves bargaining and employees.

[00:20:57] Speaker 03:
That can't be enough.

[00:20:59] Speaker 03:
It has to be, as counsel puts out, what eventually came to his order.

[00:21:04] Speaker 03:
It has to have some reason.

[00:21:08] Speaker 03:
Otherwise, I suppose, Lavina, you're going to ask, how many of the truck drivers are left-handed?

[00:21:15] Speaker 00:
Well, that wouldn't relate to any bargaining, working condition, term and condition of employment, unless there, of course, was an issue with regards to a uniform work rule.

[00:21:24] Speaker 00:
You can't have beers.

[00:21:26] Speaker 03:
So it wouldn't be presumptively relevant under those circumstances.

[00:21:39] Speaker 00:
No, but the board here says that those three items, those last three items in the information request were presumptively relevant because they- I know, but I don't understand why they're presumptively relevant.

[00:21:50] Speaker 03:
Nobody explains that.

[00:21:51] Speaker 00:
Well, part of it is looking at the facts of this case illustrate that.

[00:21:54] Speaker 00:
March 16th, the union emails the company and says, I have reason to believe that not all of the iron tagger dispatch loads are being put on the board.

[00:22:04] Speaker 00:
And then he wanted to know, in the first request, who was doing what, which loads were going to truck movers, and which ones were iron tiger loads.

[00:22:15] Speaker 00:
And then the company responded with both.

[00:22:18] Speaker 03:
But that's not what the last three questions asked.

[00:22:21] Speaker 00:
Well, the last three questions were an amplification or supplement.

[00:22:24] Speaker 00:
When they received the answer to five, which was nothing but a data stream, as you point out, of multiple numbers of loads, the union then requested additional information.

[00:22:34] Speaker 03:
Well, when they subsequently met about it, this is troubling.

[00:22:36] Speaker 03:
The company said, look, this is ridiculous, and this is burdensome.

[00:22:40] Speaker 03:
And the union gets agreed.

[00:22:42] Speaker 00:
In a situation like this, we have an information request.

[00:22:45] Speaker 00:
The response needs to be properly made.

[00:22:48] Speaker 03:
And simply posturing in a comment made, bargaining on whether... I'm trying to figure out why the unit... You know why it looks to me like the union lawyer said, we're asking for all questions about subcontracting, but I'd better throw in three questions that look like they involve bargaining with the union employees, so therefore we'll have some hook.

[00:23:07] Speaker 03:
here.

[00:23:09] Speaker 03:
No, Your Honor.

[00:23:12] Speaker 00:
Here the board specifically found the union was requesting information with regards to dispatch procedures, not subcontracting.

[00:23:18] Speaker 03:
And that's not what the focus of the letter was.

[00:23:21] Speaker 03:
The letter was basically this interrelationship between truck movers and Tiger.

[00:23:27] Speaker 03:
So

[00:23:28] Speaker 03:
These last three questions sort of come out of nowhere, and they don't seem to be relevant to anything going on between the company and the union.

[00:23:38] Speaker 00:
Well, once again, the presumption is based on, in large part, this broad discovery type of relevance that the board and this court have recognized in this area.

[00:23:48] Speaker 00:
And at this level of bargaining,

[00:23:51] Speaker 00:
a broad standard like this, it captures very often possibly irrelevant information that can then be disputed and objected to, furthers the collective bargaining, furthers the party's resolution of matters.

[00:24:05] Speaker 03:
And here it's not as a- In my view, your proposition of law is one that we would have to defer to is perfectly reasonable.

[00:24:13] Speaker 03:
Yes, Your Honor.

[00:24:14] Speaker 03:
But you seem to have the wrong case to me.

[00:24:17] Speaker 03:
to make the point.

[00:24:20] Speaker 00:
That's what's- Well, it's within the board's expertise to develop rules and-

[00:24:35] Speaker 00:
Well, here, to say that the Union was playing games would be the same as accepting their defense that this was bad faith.

[00:24:42] Speaker 00:
And bad faith is measured at the time of the request.

[00:24:45] Speaker 03:
You're right.

[00:24:45] Speaker 03:
But the Union had already, in a sense, played

[00:24:53] Speaker 03:
I'm trying desperately to understand why these three questions were perceived by the parties as relevant, because when there is a discussion about them, the union drops it completely.

[00:25:11] Speaker 00:
Well, I think this case illustrates, as the CEO Duvall's testimony indicated, he himself thought that was bargaining information.

[00:25:19] Speaker 00:
And I think that, in general, on the shop floor and in negotiations, the parties on both sides generally, in the industry, considered bargaining

[00:25:29] Speaker 00:
questions with regards to bargaining unit members to be presentively relevant.

[00:25:34] Speaker 02:
Do you agree that this case is all about one simple point, which is that the board's view is employers should have sent the September 27 letter months earlier, right?

[00:25:49] Speaker 02:
Yes.

[00:25:49] Speaker 02:
That's it.

[00:25:49] Speaker 02:
That's nothing else about this case.

[00:25:51] Speaker 00:
Yes, Your Honor.

[00:25:52] Speaker 00:
And the duty to the board found that recently that good faith requires a prompt response.

[00:25:58] Speaker 00:
The what?

[00:25:59] Speaker 00:
The good faith requires a prompt response in these circumstances.

[00:26:03] Speaker 00:
And the board's decision here with regards to the holding, the key holding, with regards to if you request, if presumptively information, relevant information is requested, prompt response is necessary, is based on solid principles recognized by the board in this court, encompassing both

[00:26:22] Speaker 00:
an unreasonable delay in these cases with regards to information coupled with cases that recognize that presumptively relevant information needs to be responded to.

[00:26:32] Speaker 01:
Well, I want a question, though, on this response.

[00:26:35] Speaker 01:
Do you agree that if the response had just been, that's not relevant?

[00:26:42] Speaker 01:
That would suffice?

[00:26:44] Speaker 00:
Well here, I think the best illustration of the best response was the one given on September 27th.

[00:26:49] Speaker 01:
That may be the best response.

[00:26:51] Speaker 01:
My question again is would it be sufficient for an employer when it gets hit with something like this to simply say that's not relevant.

[00:27:00] Speaker 01:
With regards to the last three, just to be clear.

[00:27:02] Speaker 01:
For the entire request.

[00:27:06] Speaker 00:
That would at least begin, in my view, that would at least begin the bargaining process and discussions that would then reach a resolution.

[00:27:12] Speaker 01:
I very well do that.

[00:27:13] Speaker 01:
Would it be legally sufficient?

[00:27:15] Speaker 01:
Here's my concern, just so I'll put it out there for you, is that if the board's adopting a rule, it just wants the prompt response for the sake of moving this process forward as you've indicated.

[00:27:26] Speaker 01:
That's one thing.

[00:27:30] Speaker 01:
But if in fact the next case is going to be an employer says that's not relevant on May 12th or May 13th,

[00:27:38] Speaker 01:
And then the board's gonna have a decision saying, no, no, no, no, you have to explain in detail while it's not and go through all that.

[00:27:43] Speaker 01:
And then you're sanctioning the employer for that.

[00:27:46] Speaker 01:
And the next case is gonna be increasing burdens.

[00:27:48] Speaker 01:
And then what they're worried about, about this used as a weapon, when it turns out no one's asking for relevant, actually relevant information is a real concern.

[00:27:59] Speaker 01:
But if a simple that's not relevant, move the process forward will suffice, then their concerns about use of this as a weapon will disappear.

[00:28:08] Speaker 00:
Well, the test as it stands now is if presumptively relevant information is requested or response or objections need to be presented.

[00:28:18] Speaker 02:
Why is it a simple answer to Judge Muller's question?

[00:28:23] Speaker 02:
Yes.

[00:28:24] Speaker 02:
All they have to do is say it's not relevant.

[00:28:27] Speaker 02:
And if it isn't relevant, there's no obligation to respond.

[00:28:29] Speaker 02:
That is the legal question, right?

[00:28:32] Speaker 02:
So why not just say the employer's only obligation is to say in writing, it has to be in writing, right?

[00:28:39] Speaker 02:
You just can't say it's bullshit.

[00:28:41] Speaker 02:
You just gotta say it's not relevant in writing, right?

[00:28:49] Speaker 03:
Okay.

[00:28:51] Speaker 03:
So instead of telling him it was, instead of saying it was bullshit, is that correct?

[00:28:54] Speaker 03:
No, but that's a good point.

[00:28:56] Speaker 00:
Well, here the objections were not just that it was relevant as of September 27th.

[00:29:01] Speaker 00:
Yes, that's a good point.

[00:29:06] Speaker 00:
I myself am not familiar with any cases that actually involve an oral response.

[00:29:11] Speaker 02:
But why wouldn't that be enough if everybody agrees that, in fact, they said to the union, this information is not relevant?

[00:29:21] Speaker 02:
And there's no dispute that they, in fact, said that.

[00:29:23] Speaker 02:
No, as a union person doesn't testify, oh, that's not what they said.

[00:29:27] Speaker 02:
Everybody agrees that 24 hours after getting the letter, the employer says to the union, this is not relevant.

[00:29:35] Speaker 00:
Well, in Fax's case, the board did not recognize these statements that the other side has cited with regards to these conversations with regards to... Again, just that this is not relevant.

[00:29:46] Speaker 01:
That's all.

[00:29:48] Speaker 01:
Now, they do that at their risk.

[00:29:49] Speaker 01:
They could go to a hearing and lose.

[00:29:51] Speaker 01:
It could be found to be relevant, and then you would properly sanction.

[00:29:54] Speaker 01:
But I'm talking about a case like this.

[00:29:56] Speaker 01:
They say, this is not relevant.

[00:29:58] Speaker 01:
The union then takes the process forward to a hearing.

[00:30:01] Speaker 01:
and the ALJ board say, you are darn right that was not relevant, then they will have promptly responded, you won't ding them for that, and they'll be right.

[00:30:09] Speaker 01:
They didn't have any duty to respond.

[00:30:11] Speaker 01:
What's wrong with that paradigm?

[00:30:13] Speaker 00:
Well, in my view, that factual matter, that factual scenario you present wouldn't be a problem.

[00:30:20] Speaker 00:
But here we have a situation where under the rules of how this works, it's a burden shifting, presumptively relevant.

[00:30:27] Speaker 01:
I know what you say, that's not relevant.

[00:30:29] Speaker 01:
You have discharged your duty.

[00:30:31] Speaker 00:
I'm sorry, I'm just trying to get the point that if the employer

[00:30:35] Speaker 00:
then alleges that it's not relevant.

[00:30:38] Speaker 00:
The union is then required to come forward and show relevance.

[00:30:41] Speaker 00:
So the burden shifts back and forth with these allegations.

[00:30:45] Speaker 00:
So I see myself no problem with that.

[00:30:48] Speaker 01:
The burden could be met by that's not relevant.

[00:30:51] Speaker 01:
And then again, there are risks of the board disagreeing.

[00:30:53] Speaker 00:
In my view, but the board itself has never said exactly that.

[00:30:58] Speaker 00:
But here, it did find that good faith and its interpretation of the collective bargaining

[00:31:06] Speaker 00:
duties under the Act did require this employer to respond promptly for the reasons in the September 27th response.

[00:31:14] Speaker 03:
Do the last few questions have anything to do with the rest of the letter?

[00:31:18] Speaker 00:
I'm sorry, what letter are you referring to?

[00:31:20] Speaker 03:
The April letter, excuse me, the May 11th letter.

[00:31:30] Speaker 03:
with the rest of the letter?

[00:31:31] Speaker 00:
The information, the last three items were an amplification supplement to their response to number five.

[00:31:38] Speaker 03:
I know, I'm asking a question.

[00:31:40] Speaker 03:
Do the last three questions have anything to do with the rest of the union's letter?

[00:31:45] Speaker 00:
Oh, with the rest of the information request?

[00:31:47] Speaker 00:
Yes.

[00:31:49] Speaker 00:
Well, and as far as they were looking at who was dispatched, either barking or voicing?

[00:31:55] Speaker 03:
The last three questions have nothing to do with

[00:31:59] Speaker 03:
Nothing whatsoever.

[00:32:01] Speaker 00:
This regards to the dispatch procedures.

[00:32:04] Speaker 03:
Would you just answer the question?

[00:32:05] Speaker 03:
It has nothing to do with the alleged subcontract.

[00:32:08] Speaker 00:
What we're really getting at here is the ultimate finding by the board that it wasn't relevant.

[00:32:13] Speaker 03:
No, but I'm asking you the question.

[00:32:16] Speaker 03:
Here's the employer looking at this level.

[00:32:18] Speaker 00:
Yes.

[00:32:18] Speaker 03:
The last three questions either relate to the earlier questions or they don't.

[00:32:24] Speaker 03:
I was trying to think if I were the employer looking at these last three questions, I would have initially thought they had some relevance to the first eight questions.

[00:32:35] Speaker 03:
Do you think the logical reading?

[00:32:38] Speaker 00:
Well, not necessarily.

[00:32:39] Speaker 00:
Often information requests cover many different topics.

[00:32:42] Speaker 03:
Yeah, I know.

[00:32:44] Speaker 03:
There's an issue here about alleged subcontracting.

[00:32:54] Speaker 03:
And so these last three questions, you read it and think that it must have something to do with the verse part.

[00:33:04] Speaker 03:
It doesn't say anything different.

[00:33:06] Speaker 03:
That's one possible reading.

[00:33:09] Speaker 03:
Is that correct?

[00:33:10] Speaker 00:
That's one possible reading.

[00:33:11] Speaker 03:
If that's true, it wouldn't be presumptively relevant because it would be related to subcontract.

[00:33:16] Speaker 00:
Well, the board here, we have to realize, the board here specifically found it was presumptively irrelevant because those three questions ran to bargaining unit.

[00:33:24] Speaker 03:
You're not answering my question.

[00:33:26] Speaker 03:
I'm not sure if I can, Your Honor.

[00:33:27] Speaker 03:
Because the board doesn't accept it.

[00:33:35] Speaker 00:
But here with no justification or even mention of the response.

[00:33:41] Speaker 03:
How did the company align September 27th answer the last three questions?

[00:33:49] Speaker 00:
They actually asked.

[00:33:51] Speaker 03:
They said it's not remotely relevant, and the union agreed it wasn't relevant.

[00:33:59] Speaker 00:
Ultimately, it did after it understood its misunderstanding of the procedures.

[00:34:02] Speaker 03:
Well, the last three questions either.

[00:34:05] Speaker 03:
That's been so confusing, because the union is suggesting the last three questions relate to subcontracting.

[00:34:12] Speaker 03:
So therefore, they understand now on the subcontracting, so therefore the last three questions are not relevant.

[00:34:17] Speaker 03:
So the union, therefore, interpreted the last three questions it asked as relating to subcontracting.

[00:34:24] Speaker 00:
Well, Your Honor, I think this really demonstrates that the union was confused, was operating on misunderstandings.

[00:34:29] Speaker 00:
Wait a minute.

[00:34:29] Speaker 03:
Do you understand the point I'm making?

[00:34:31] Speaker 03:
The union seems to assume that the last three questions related to subcontracting, in which case they would not be presumptively relevant.

[00:34:40] Speaker 03:
No, here the unit.

[00:34:43] Speaker 03:
If the last three questions related to subcontracting, under your law, it would not be presumptively relevant.

[00:34:49] Speaker 00:
Well, here the court found that it would relate it to dispatch procedures, not subcontracting.

[00:34:53] Speaker 03:
I'm asking if it was connected to the first eight questions, it would be

[00:35:01] Speaker 00:
That would be my understanding.

[00:35:03] Speaker 00:
And then it wouldn't be presumptively relevant.

[00:35:05] Speaker 00:
Under Disneyland, it would be a hard press.

[00:35:08] Speaker 02:
Okay, thank you.

[00:35:10] Speaker 02:
Thank you.

[00:35:13] Speaker 02:
Did counsel have any time left?

[00:35:16] Speaker 02:
You can take two minutes if you'd like.

[00:35:22] Speaker 04:
The board just argued that we're talking about this case in the context of good or bad faith bargaining.

[00:35:27] Speaker 04:
And in this case, whether the court looks at this as a matter of harassment, whether it looks at it in terms of any other defense, including a decision of this court in terms of affirmative defense that the employer raises, I think we've got to understand it in that context.

[00:35:40] Speaker 02:
I don't care what it is.

[00:35:41] Speaker 02:
Let me just ask you this.

[00:35:42] Speaker 02:
Let's just assume, for purposes of what you're about to say, that even though we might ourselves agree with you about harassing nature of this request, that we don't feel, given the standard of view, that we can second-guess the board judgment that it wasn't harassment.

[00:35:56] Speaker 02:
So why don't you assume that it's, unless you would argue about that, why don't you assume it wasn't harassing?

[00:36:02] Speaker 02:
Make your argument from that point.

[00:36:04] Speaker 04:
First, I'll assume that the point that neither the administrative law judge or the board even dealt with this issue in terms of the factual review.

[00:36:10] Speaker 04:
They were arbitrary and capricious in their analysis.

[00:36:13] Speaker 03:
But that was what issue?

[00:36:14] Speaker 03:
The issue different?

[00:36:15] Speaker 03:
Forget the harassment question.

[00:36:16] Speaker 03:
That's what he's saying.

[00:36:17] Speaker 03:
Forget it.

[00:36:17] Speaker 04:
OK, we'll forget it.

[00:36:18] Speaker 03:
We can't make our own factual determination.

[00:36:21] Speaker 03:
Even if we might agree with you.

[00:36:32] Speaker 03:
was harassing.

[00:36:35] Speaker 04:
So now go ahead.

[00:36:36] Speaker 04:
But I can't assume that because I disagree with that this record.

[00:36:39] Speaker 04:
Okay, what do you want to argue that then?

[00:36:41] Speaker 03:
Is that the key to the case?

[00:36:42] Speaker 04:
It's part of the case.

[00:36:43] Speaker 04:
Yes, your honor.

[00:36:44] Speaker 04:
Cheat what?

[00:36:44] Speaker 04:
There's there's many players this case.

[00:36:45] Speaker 04:
But if we look at man with this part's decision, they you recognize that a company can raise in front of defense of harassment and avoid any barrier to do a bad fit.

[00:36:54] Speaker 04:
Bargaining.

[00:36:56] Speaker 03:
That's you know what?

[00:36:57] Speaker 03:
Just that reminds me of the ancient principle of off my head.

[00:37:00] Speaker 03:
We all should be a trolley car.

[00:37:03] Speaker 03:
Okay, because you didn't prevail on that.

[00:37:06] Speaker 03:
It's a factual question.

[00:37:07] Speaker 03:
It's not one we can read.

[00:37:09] Speaker 02:
In fact, September 27 letter says just what you said they should say.

[00:37:14] Speaker 02:
They said it was harassing and burdensome.

[00:37:16] Speaker 04:
Yes, correct.

[00:37:17] Speaker 02:
But the board's point is it was too late.

[00:37:21] Speaker 02:
That's all this case is about.

[00:37:23] Speaker 02:
Nothing else.

[00:37:24] Speaker 02:
Okay, so we are years later.

[00:37:26] Speaker 04:
Good point.

[00:37:27] Speaker 02:
Taking all this time of this court and you and the board.

[00:37:31] Speaker 02:
And the only issue is, should the company have sent a letter that everybody agrees was adequate three months earlier?

[00:37:37] Speaker 02:
That's all this case is about.

[00:37:39] Speaker 04:
And we'll deal with that issue in terms of, the board says that letter resolves this dispute.

[00:37:44] Speaker 04:
Test that.

[00:37:45] Speaker 04:
Why did it take them three months to issue a complaint against Iron Tiger then?

[00:37:48] Speaker 04:
I don't know.

[00:37:49] Speaker 04:
It's three months after September.

[00:37:50] Speaker 04:
You're investigating the case.

[00:37:51] Speaker 04:
Why didn't they say you satisfied the case on September 9, 2017?

[00:37:55] Speaker 04:
There's no prejudice.

[00:37:56] Speaker 04:
They admit there's no prejudice to the union for not giving them anything because there was nothing to give them.

[00:38:00] Speaker 04:
In terms of dealing with this issue, there still has to be an honest claim that's made by the union.

[00:38:03] Speaker 04:
They never did have an issue.

[00:38:05] Speaker 04:
from the beginning of time.

[00:38:07] Speaker 04:
The board says you've solidly promised you'd done earlier.

[00:38:09] Speaker 04:
How earlier?

[00:38:10] Speaker 04:
One week earlier?

[00:38:11] Speaker 04:
Two weeks earlier.

[00:38:12] Speaker 04:
One month earlier?

[00:38:13] Speaker 04:
Two months earlier.

[00:38:14] Speaker 04:
Three months earlier?

[00:38:15] Speaker 04:
The day after?

[00:38:16] Speaker 03:
Four and a half months is too long.

[00:38:18] Speaker 03:
That's a terrible argument, counsel.

[00:38:21] Speaker 03:
That argument is terrible.

[00:38:24] Speaker 03:
To ask the question, how long is too long, is not up to this court.

[00:38:28] Speaker 03:
That's a board decision, isn't it?

[00:38:30] Speaker 04:
But in this context, you say, what difference would it have made to this case when the NLRB issues a complaint three months after he wrote the September 27th letter?

[00:38:41] Speaker 04:
I think it is important in that context.

[00:38:43] Speaker 02:
OK.

[00:38:43] Speaker 02:
Anything else?

[00:38:45] Speaker 04:
Any other questions, Your Honor?

[00:38:46] Speaker 02:
No, thank you.

[00:38:47] Speaker 02:
Case is submitted.