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Case number 15-11-02, Kimberly Stewart at ELL Petitioners, Russia's National Labor Relations Board.

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Mr. Talman for the petitioners, Mr. Seid for the respondent, and Ms.

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Martin for the intervener.

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Good morning.

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Your honors may please the court.

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I'm Glenn Taubman for the Petitioners.

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During a hiatus between collective bargaining agreements, the seven petitioners and over 700 other grocery workers exercised their Section 7 rights to refrain from supporting a union by revoking their dues deduction authorizations, something that Section 302C4 allows every employee to do, quote, beyond the termination of the applicable collective bargaining agreement, unquote.

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But the dues continued, the dues collections continued despite these lawful revocations.

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Section 7 and section 8 of the National In Relations Act protect employees' paramount right to voluntary unionism, their right to refrain from being forced to pay dues

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when they are under no legal obligation to do so.

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And Section 302C4 works in tandem with Sections 7 and 8 to ensure that money is not seized from employees' salaries without their consent.

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Can I ask you what... I just want to make sure I understand your position as to what Section 302C4 means.

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Are you saying that any checkoff authorization

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that has any restriction on being able to opt out, so to speak, beyond one year violates the statute.

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If it doesn't follow the expressed terms of Section 302, it violates that statute, yes.

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So Section 302, as Atlanta Printing Specialties in the Fifth Circuit and Anheuser-Busch in the Fourth Circuit both said, Section 302C4 provides for two distinct revocation periods.

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One, there has to be an annual opportunity to revoke,

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which is generally keyed to the signing date.

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And then, when there is a hiatus in a contract, there is a distinct revocation period that is, quote, beyond the termination of the applicable collective bargaining.

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What language in 302C4 says it's going to be annual?

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Well, that goes to the first part of 302, which really isn't actually an issue in this case, and that's the part that says,

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a written assignment which shall not be irrevocable for a period of more than one year.

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That's the first part.

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That's not truly an issue in this case.

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This case deals with or beyond the termination date.

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But it says whichever occurs sooner.

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So let's suppose there's a three-year collective bargaining agreement.

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And on day one of that collective bargaining agreement, an employee signs an authorization for the checkoff.

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So, are you saying that anything that restricts his ability to revoke that checkoff more than one year later violates 308?

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Yes, the first part of it.

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Yes, I would say that.

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Alternatively, if I can read... But what do you mean it violates the first part of it?

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It's all one provision.

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Yes, but the courts have said there are two distinct revocation periods.

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And again, the issue here... But I don't think... But you haven't been taking the position, as far as I can tell in your briefs, that even with respect to the first part of it, that after one year there's a...

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infinite revocability.

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No, no, you haven't been taking that position.

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You've been taking the position that the first part means that it's a maximum period of one year so that it can be a one-year period of irrevocability that's repeated.

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Yes, absolutely, and it is repeated.

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If you look at Atlanta Printing Specialties, they talk about how when an employee lets that one-year period go by and doesn't revoke,

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then in effect, it's like he's signing a new check off again.

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So with regard to the first portion of the statute, yes, it annually renews.

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It can be irrevocable.

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What this whole case is about is that here,

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The contract did terminate.

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It had a term of October 2003.

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So here's part of what I'm not following about this case.

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It comes to us, it seems to me, in a very strange posture because the way both sides have teed this up on the second part, the termination-related part, not the

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anniversary of execution part, on the termination part, is as if it's a referendum on Frito-Lay.

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In other words, that there are two ways that this could be resolved.

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One is to say, per your view, that once the contract expires, then from that point forward, revocability kicks in.

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The other way is to say, no, even if there's a pre-termination window, that's still enough.

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That was the issue in Frito-Lay, and the board said, well, the pre-termination window is still enough, and we could have an argument about whether that's consistent with 302C4.

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And your view would be that it's not, because it has to be post-termination.

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What I don't understand about this case, though, is it just doesn't even seem to present that issue.

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And the reason it seems not to present that issue is that what the ALJ said and what the board affirmed is that this is a case in which the only people who got the benefit of the second part, the termination part, are the people who signed within the last year of the CBA.

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Nobody else got a benefit at all.

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So there was no, as far as I can tell, the ALJ decided the case on the assumption that there was no pre-termination window.

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There just wasn't.

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And if there wasn't a pre-termination window and there wasn't anything post-termination either, then we're in a situation in which the second clause, the second part of the statute

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all the only thing it can mean is that only benefits people who signed their authorization within the last year of the cba well i hope i'm following your your honor's point but the a l j misread three oh two and misread atlanta printing specialties badly i'm i'm not i don't think i'm asking about what the and i understand is a little bit confusing but i'm not i don't think i'm asking about the way at the a l j understood the law i'm under i'm asking about the factual predicate of this case it seems to me

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that this case has come to us on the assumption that what happened was the employees had an opportunity to revoke in a pre-expiration window, that you take the 30 to 45 day window and you apply it not only to the anniversary of the execution of the authorizations, but you also apply it to the contract termination.

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and that they had an opportunity to revoke 30 to 45 days before the contract revocation.

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And then the question for us is, is that okay?

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That's what the board would say because Frito-Lay says it's okay.

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You would say it's not okay because a pre-termination window isn't enough.

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You have to have revocability post-termination.

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My point is that this case just doesn't present that because there was no pre-termination window per the ALJ's description of the agreement.

[00:08:23] Speaker 05:
I'm not sure why your honor says this case doesn't present that.

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There were my clients, the seven petitioners and hundreds of people who sent in revocation letters

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from the date the contract terminated in October 2008 until the day a successor agreement was put into place in November 2009.

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No, I think this is actually a factual point that I think is in your favor, which is this.

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I'm totally confused at this point.

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It's a confusing point, but let me try to be as clear as possible and just bear with me for a minute.

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Frito-Lay presents the following situation.

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It says part of the second part of the statute deals with the escape opportunity that's tied to termination.

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I'm not worried about anniversary of execution.

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I'm just talking about the termination-related part.

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What Frito-Lay says is there's two ways one could look at that.

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One could say that vis-a-vis termination, a pre-termination window is enough.

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That's what happened in Frito-Lay.

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And the board says that's OK.

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Or your view would be, no, a pre-termination window isn't enough.

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Under 3OTC 4, under the plain text, because it says beyond, revocability has to be post-termination.

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It's not enough just to give a pre-termination window.

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So far you're with me.

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So that's the way the case comes to us.

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My point is this, that in this case, there wasn't even a pre-termination window.

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Because the way the ALJ clearly, under the ALJ's opinion, the way the ALJ described the case is that the only people who got the benefit of a termination-related escape were the people who signed in the last year of the CBA.

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That's how the ALJ read the authorization.

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That's how the ALJ read the statute.

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So in other words, the employees never had a pre-termination window because the authorization didn't provide for one.

[00:10:18] Speaker 05:
And that may be very true, and I think if I win on that ground, that there never even was that pre-termination in that case.

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Why should you win on that ground even when you didn't raise it?

[00:10:32] Speaker 05:
I raised what we... Did you raise the point?

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If you raised it, it sure went by me.

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Did you raise it?

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That there was no, not even a pre-termination opportunity in this case?

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Did you raise it?

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I did not specifically.

[00:10:48] Speaker 02:
You did say that the letters never advised your employees of any pre-termination window.

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Yes, that's correct.

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I mean, we believe that the union interpreted its own checkoff to not provide this opportunity.

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And do you dispute that the ALJ decided the case – as I read the ALJ's opinion, it's absolutely clear.

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The ALJ says on a number of occasions that the opportunities that should have been provided under the agreement were the annual – the first part, the annual re-up on the execution date.

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But as to termination, the only opportunity that needed to have been provided was to those who signed in the very last year of the CBA.

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I think that's how, among the errors of the ALJ's opinion, I think that is one of them.

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And yes, we have argued that the union did not properly provide even that window period.

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You need to say that.

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Well, we talk about their letters.

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Did you say that, Counsel, really?

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It wasn't a central, I will say.

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Did you say it?

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I think that we argued that as the central point, and I will say that.

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That's correct.

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But I don't see... But what are we supposed to do?

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Because this is an administrative law case, and we're trying to understand the agencies.

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We have to decide whether to affirm or set aside what the agency did.

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And it seems to me that the case is presented to us on a posture, on a factual posture, that just isn't what the agency, in fact, confronted.

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What the agency confronted is one in which there was no pre-termination window afforded.

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There just wasn't.

[00:12:31] Speaker 05:
Well, then there was a violation of Section 302, and that's been our argument all along.

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That's the argument that we raised.

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That's not the big issue.

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That's not the Frito-Lay issue.

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In other words, what Judge Schwinn-O'Boston said, it looked like the facts in this case avoided.

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the Frida Leigh issue.

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I don't see how that's possible.

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I mean, my clients and some 700... No, no, no.

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You can win, but you avoid never... You can win the case, according to Judge Dunn-Boston, without our deciding the Frida Leigh issue.

[00:13:04] Speaker 05:
Well, Your Honor, I'll be happy to win the case on any grounds that the court would like to give it to me.

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Can I ask you this?

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Apart from the question of whether you specifically raised this way of looking at the case, you obviously raised the point that you should win under 302C4.

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At that level of generality, you raised the question.

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So if we're talking about possible ways in which you might win under 302C4, and obviously I'm not saying you definitely would, but possible ways in which you might, do you disagree with me on the factual predicate?

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As I read the ALJ's opinion, the ALJ decides the case on the assumption that there was no pre-termination window for people outside the first year.

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I just don't see any other way to read the opinion.

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I can read you the quotes from the JA, but I just don't see how else you read it.

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And I'll just direct your attention to, for example, JA 309, and I'm looking at the first full paragraph, it starts with applying the checkoff authorization.

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The first sentence is about the yearly anniversary date.

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In addition, employees who signed authorizations during the last year of the contract could revoke their authorizations upon the expiration of that contract.

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That's the only time that the ALJ hypothesizes there's any opportunity to revoke vis-a-vis termination.

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And he, I'm assuming, I thought it was a he, says the same thing again at least two other times.

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So the case just comes to us on the assumption that there was no pre-termination window.

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I don't understand why the board would have concluded as it did.

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It doesn't make any sense.

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If there is no pre-termination window,

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view this whole case as a giant administrative screw up, if you will.

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To my way of thinking, the ULP charges were clear.

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The complaint that the general counsel issued was clear.

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The way I like to look at this case is the seizure of dues from employees is per se a violation unless the union can show that it has a valid and binding agreement

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with them.

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And here, however you look at it, there was not a valid and binding agreement because the employees revoked beyond the termination date of the applicable collective bargaining agreement.

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That's the argument that we made and the argument that Section 302 is not even a statute within the... Well, you don't even have to... I read what Judge Finnevosson says.

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You win easily because there's not

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I don't understand the board's opinion.

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I don't understand why the board is relying on freedom of lay if there's no pre-termination window at all.

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Your honor, you'll have to ask the board that.

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My clients are grocery workers.

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Many of them are teenagers.

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If you look in the joint appendix at the kind of letters that these people wrote, they made it clear they were very inartful, many of them, but they made it clear one way or another they wanted to disassociate from the union.

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They used all kinds of different terminology.

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But the fact of the matter is every one of those people is exercising their Section 7 rights to refrain, and the answer from the union and the answer from the board was no, you can't do it.

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However, the ALJ misconstrued the law, which we certainly believe and we've argued that he completely misconstrued Atlanta Printing Specialties and Anheuser-Busch, which

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authoritative on this point and on 302 a statute of which the board well I thought you had a very good argument on the word beyond rather than that but I'm sort of and and it seems to me if there's no not even a window period

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I don't understand what the contention of the, well, we'll have to wait and hear what the board says.

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I think the board will ask the board.

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I think the board leaves that issue open in a footnote in its brief.

[00:17:21] Speaker 06:
Which issue?

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On the question of whether, even in the absence of a pre-termination window, it's still consistent with 302C4.

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But we can ask the board that, obviously that's none of yours.

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I would like to also discuss the inconsistency of the board's own precedent when you compare what happened here and in Frito-Lay with KYC-TV and Lincoln Lutheran, two recent board decisions.

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It shows the complete

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inconsistency and possibly incoherence of the way the board looks at these kinds of cases and 302C4.

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Because in Lincoln Lutheran and KYCTV, the board overruled Bethlehem's deal, 50 years of law, and says we are no longer going to allow employers to determine when checkoffs should be revoked because

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That is the exclusive and unfettered right of the employees under 302C4 to revoke beyond the termination of the contract.

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So can I, if that's your view, can I ask you a question?

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Well, let's suppose the question is before us, the issue as it's been teed up, the Fidelity issue, just for arguments purposes.

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One thing I don't understand about your argument is this, that

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It seems to me that your argument could be, but is not, that if beyond means what you think it means, that once the agreement expires, there's revocation on the table, period.

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It doesn't matter if there's a new CBA.

[00:18:52] Speaker 02:
But yet, as I read your briefs, I think it's clear from your briefs, you think that once a new CBA is signed, that new CBA becomes the applicable agreement, and then irrevocability kicks back in.

[00:19:05] Speaker 05:
I think that's correct.

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I think that's the most reasonable way to read Section 302.

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I would have heard it.

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The alternative is the employees would need a new authorization.

[00:19:16] Speaker 06:
I think Judge Srinivasan is getting to that point almost inevitably.

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Is that your point, sir?

[00:19:21] Speaker 02:
That's where I'm going.

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And I guess one way to look at it is why would you then draw a distinction between a subsequent CBA and the extension agreements?

[00:19:31] Speaker 02:
Because they're all new contracts.

[00:19:34] Speaker 02:
So it seems to me that your position is a little bit of a hybrid position because you're saying you're not willing to say once the first agreement expires,

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infinite irrevocability, because you allow for the notion that when a new CBA kicks in, irrevocability kicks back in.

[00:19:53] Speaker 02:
But then it seems to me the extension of that would be, well, that also applies to the extension agreements.

[00:19:57] Speaker 05:
Well, I would be happy to say that the checkoffs are automatic.

[00:20:01] Speaker 02:
But you're not.

[00:20:01] Speaker 02:
But OK, then.

[00:20:02] Speaker 02:
You're not saying, because you say exactly otherwise in the brief.

[00:20:04] Speaker 02:
But I haven't argued that in the brief.

[00:20:06] Speaker 02:
That's correct.

[00:20:06] Speaker 02:
In fact, it's not just that you haven't argued it.

[00:20:08] Speaker 02:
It seems to me you've argued the exact opposite, because you've said that the- Although all parties seem to agree that the

[00:20:14] Speaker 06:
The interim agreements don't qualify as applicable agreements.

[00:20:18] Speaker 06:
Both sides agree on that.

[00:20:19] Speaker 05:
And that's where I was going to next, because however you look at this, these temporary agreements are not applicable agreements.

[00:20:27] Speaker 05:
The judge didn't treat them as such.

[00:20:33] Speaker 02:
And I don't understand the difference.

[00:20:34] Speaker 02:
How is it, just explain to me legally, how is it that a new CBA is an applicable agreement, but an extension of the CBA, which is a new contract, is not an applicable agreement?

[00:20:45] Speaker 05:
Well, if you look at the actual extension agreements, they actually talk about retroactivity, that if we reach new terms that provide for higher wages, then it will be retroactive.

[00:20:55] Speaker 05:
I mean, it's clear that those extension agreements are not meant to be full collective bargaining agreements.

[00:21:02] Speaker 05:
It really is just a way to mark a period in which the company and the union are going to continue to negotiate.

[00:21:09] Speaker 05:
And so that's all it is.

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There won't be any strikes during that period.

[00:21:12] Speaker 05:
It's kind of like a

[00:21:16] Speaker 05:
Exactly, exactly.

[00:21:18] Speaker 05:
They just call the time out.

[00:21:21] Speaker 02:
And are those well enough known in the, this is just as a matter of fact, are they well enough known in the industry that the board as an administrative body or a court that's on judicial review can easily draw a distinction between what is an applicable agreement that comes along and what is not an applicable agreement that comes along?

[00:21:40] Speaker 05:
I think if you go to Labor Law 101,

[00:21:43] Speaker 05:
Yes, the answer is yes, there's a distinction.

[00:21:46] Speaker 05:
And I'll tell you one clear distinction.

[00:21:48] Speaker 05:
Under the board's contract bar doctrine, which means when can employees file for decertification?

[00:21:55] Speaker 05:
They cannot file for decertification while a contract exists for up to three years.

[00:22:03] Speaker 05:
But they could have filed for decertification

[00:22:07] Speaker 05:
during all of these extension agreements.

[00:22:10] Speaker 06:
Also, another union could file an election petition.

[00:22:14] Speaker 05:
Right.

[00:22:14] Speaker 05:
Well, same idea, but the point is the board has never said that these temporary extension agreements constitute a real collective bargaining.

[00:22:27] Speaker 03:
I guess these most recent questions get to the point that I was trying to, I guess, fish out with my initial question, which is that

[00:22:37] Speaker 03:
My understanding of the definition of the term irrevocable means, I mean, if you look at Black's Law Dictionary, Oxford, Webster's, that it's unalterable, committed beyond recall, cannot be undone, et cetera, et cetera.

[00:22:56] Speaker 03:
And what seems to happen here is that

[00:23:04] Speaker 03:
In that first year, it is truly irrevocable in the sense that there's nothing that you can do to get out of the checkoff.

[00:23:14] Speaker 03:
It's unalterable.

[00:23:15] Speaker 03:
It can't be undone.

[00:23:16] Speaker 06:
That's actually not true.

[00:23:18] Speaker 06:
That's a matter of law.

[00:23:20] Speaker 06:
If a union becomes defunct, the irrevocation is automatic, as the board would agree.

[00:23:27] Speaker 03:
There's some of our exceptions.

[00:23:29] Speaker 03:
But that's what 302C4 seems to be driving at.

[00:23:35] Speaker 03:
those periods after the one year, those seem to be restrictions on your ability to revoke.

[00:23:46] Speaker 03:
But that's not the same as saying that all of a sudden it's become completely irrevocable again.

[00:23:53] Speaker 03:
And so that's why I'm not following your argument in general.

[00:24:03] Speaker 03:
because it seems that you're trying to not really follow the plain language of what irrevocable means.

[00:24:15] Speaker 05:
Your Honor, I would say a few things to that.

[00:24:18] Speaker 05:
I'm following what Atlanta Printing Specialties and Anheuser-Busch, the Fourth and the Fifth Circuits, said about this very language.

[00:24:27] Speaker 05:
I don't see ambiguity here.

[00:24:29] Speaker 05:
There are two separate periods in which employees have rights.

[00:24:36] Speaker 05:
The first one can be made irrevocable for a period of up to one year.

[00:24:42] Speaker 05:
Congress wanted people to have the opportunity at least once a year to change their mind.

[00:24:49] Speaker 05:
That's the first portion.

[00:24:51] Speaker 05:
The second distinct period occurs when a contract expires, when a contract terminates, to use the language of the statute, because Congress wanted employees to be able to have a fresh look then

[00:25:07] Speaker 05:
as Atlanta Printing Specialty said, to determine for themselves now that the old contract has... I understand that.

[00:25:15] Speaker 03:
You're not, I don't think, maybe I'm not being clear.

[00:25:18] Speaker 03:
Just because something is no longer irrevocable doesn't mean that you can't place limits on revocation.

[00:25:30] Speaker 05:
Well, number one, that's not what the statute says.

[00:25:34] Speaker 03:
I'm just asking as a matter of English language, right?

[00:25:41] Speaker 03:
Just because something is no longer irrevocable doesn't mean that it's completely irrevocable at will once the period of irrevocability ends.

[00:25:50] Speaker 05:
Well, Your Honor, I could only say that I don't find ambiguity here, and when the statute

[00:25:58] Speaker 05:
is designed to protect employees' rights of free choice, and it says, shall not be irrevocable beyond determination, I don't find ambiguity here.

[00:26:09] Speaker 03:
And I would like to... So if the statute, if somebody says, well,

[00:26:16] Speaker 03:
Your revocation has to be in writing after that period of irrevocability.

[00:26:22] Speaker 03:
You can't say that because that's some sort of a limitation?

[00:26:26] Speaker 05:
Well, it could be, Your Honor.

[00:26:28] Speaker 05:
If you look at the Supreme Court's Felter case, in Felter, the Union said, you can only revoke if you use our special form.

[00:26:37] Speaker 05:
And the Supreme Court struck that down and said, no, this is about employee-free choice, and we're not going to allow you to create all kinds of sort of Mickey Mouse restrictions to make it more difficult for employees, as the Supreme Court said.

[00:26:52] Speaker 03:
Okay, but that's not my hypothetical.

[00:26:54] Speaker 03:
My hypothetical is you can't be oral.

[00:26:57] Speaker 03:
It has to be in writing.

[00:26:59] Speaker 05:
Well, let's look at it.

[00:27:00] Speaker 03:
Does that violate the plain language of the statute?

[00:27:07] Speaker 05:
I'm not sure I would say that violates the plain language, but I would also say that that has to be looked at in terms of what the Chekhov agreement says.

[00:27:16] Speaker 05:
This Chekhov agreement says, in writing, we haven't challenged that.

[00:27:22] Speaker 05:
That's not an issue.

[00:27:24] Speaker 05:
So, I mean, in a sense, you could call that a limitation, but the basic concept of being able to revoke

[00:27:32] Speaker 05:
is an employee free choice right as I said at the outset your honor section seven and eight work in tandem with section 302 c4 and I want to add one point to this which Judge Silberman's answer before reminded me

[00:27:48] Speaker 05:
None of this is ironclad, even about irrevocability.

[00:27:54] Speaker 05:
And I'll give you an example.

[00:27:55] Speaker 05:
If you look at the Penn Corp case out of the Seventh Circuit, employees had signed checkoffs that said, this is irrevocable for a year.

[00:28:04] Speaker 05:
But during that year, they deauthorized the Union Security Clause, meaning they took out of the contract any obligation to pay.

[00:28:15] Speaker 05:
And the board and the Second Circuit then said, even though they signed an irrevocable checkoff clause, the subsequent event of having a deauthorization election and taking forced dues out of the contract

[00:28:30] Speaker 05:
opened it up as a matter of Section 7 and 8 law that everybody should now have a new opportunity.

[00:28:42] Speaker 05:
irrevocability is looked at in terms of employee free choice and that's been our position throughout.

[00:28:50] Speaker 03:
What is your position though as far as like we've we've held in the Associated Press the NLRB case back in the 70s that section 302 a violation of that does not necessarily constitute an unfair labor practice under section seven.

[00:29:09] Speaker 05:
I would say, first of all, that it's hard to imagine a violation of Section 302C4 in this context that isn't the violation of Sections 7 and 8.

[00:29:21] Speaker 05:
And secondly, with regard to the Associated Press case,

[00:29:24] Speaker 05:
This court did not in any way opine on what Section 302 actually meant.

[00:29:31] Speaker 05:
It was a deferral to arbitration case.

[00:29:33] Speaker 05:
This court said, we don't mean to opine on 302 any more than the board did.

[00:29:39] Speaker 05:
And the Fourth Circuit in Anheuser-Busch was looking at Associated Press.

[00:29:44] Speaker 05:
It said the DC Circuit did not opine on Section 302.

[00:29:48] Speaker 05:
It was simply a deferral to arbitration case that I believe has no impact on what's going on.

[00:29:54] Speaker 06:
Let me go back to Judge Shrinda Bossen's hypothetical discussion of the facts in this case.

[00:30:02] Speaker 06:
Assuming his question, which is simply a fact question, is correct.

[00:30:09] Speaker 06:
What is in front of us then?

[00:30:13] Speaker 05:
All I can say is what is in front of you is the complaint that the general counsel issued, which said that employees tried to revoke and their revocations were denied.

[00:30:26] Speaker 05:
What then comes up before you is the ALJ said that was perfectly fine for them to deny these revocations.

[00:30:36] Speaker 05:
The board affirmed.

[00:30:37] Speaker 05:
So we are here now saying whatever the ALJ did and the board affirmed,

[00:30:42] Speaker 05:
It is a violation of Section 7 and 8 and 302C4 that work together in tandem to protect employees' free choice.

[00:30:51] Speaker 06:
And if Judge Srinivasan is correct, your view is it is unnecessary for us to encounter Frito-Lay to conclude that the board violated Section 7 and Section 8?

[00:31:06] Speaker 05:
If the court wants to

[00:31:14] Speaker 06:
Do we have to avoid Frito-Lay?

[00:31:17] Speaker 06:
I mean, we can only decide what the board did.

[00:31:24] Speaker 05:
Your Honor, I wish I could actually understand what the board did in this case, because all we have before us is what I consider to be a very unwell ALJ opinion, rubber-stamped by a board, burst by a board.

[00:31:40] Speaker 06:
Well, I'm assuming the board...

[00:31:42] Speaker 06:
As you well know, and I know many cases, board cases, are just ALJ opinions affirmed precursorily by the board.

[00:31:53] Speaker 06:
So we're looking at the ALJ's opinion as the board opinion.

[00:31:57] Speaker 06:
And I'm sort of mystified because you haven't really made the argument that Judge Srinivasan shrewdly observed.

[00:32:08] Speaker 06:
So I'm puzzled.

[00:32:13] Speaker 05:
the appropriate appellate review is for the court to say that the board did not properly enforce section seven and eight and section 302 in the way that it held that these hundreds and hundreds of revocations were not valid and these people had to continue paying dues.

[00:32:32] Speaker 05:
That's, I believe, what the court has to say.

[00:32:34] Speaker 02:
Well, it seems to me in a lot of situations like this, there's at least the, in an agency situation, there's the opportunity, if we don't know what the predicate is,

[00:32:42] Speaker 02:
then there's the opportunity to send it back to the agency for clarity.

[00:32:46] Speaker 02:
Which would be a disposition that would be in your favor because it would send it back to the agency.

[00:32:52] Speaker 05:
Well, I would ask that.

[00:32:55] Speaker 05:
Obviously, the court will do what the court will, but I would ask that that not happen for several reasons.

[00:33:01] Speaker 05:
A lot of this case involves 302C4, which the board has no authority over.

[00:33:07] Speaker 05:
The board is entitled to no deference over, et cetera.

[00:33:10] Speaker 05:
That's the first thing.

[00:33:11] Speaker 05:
The second thing is this case has been around for a very long time.

[00:33:15] Speaker 05:
It lived through Noel Canning, and it's here for the second time.

[00:33:19] Speaker 02:
Well, no matter what, any resolution in your favor would require sending it back to the agency period, no matter what.

[00:33:24] Speaker 02:
So I mean, I don't think I'm saying anything that

[00:33:27] Speaker 02:
is not in accordance with what everybody agrees would have to happen.

[00:33:30] Speaker 05:
Agreed, but sending it back for the board to reassess the entire decision versus sending it back for compliance.

[00:33:37] Speaker 02:
Yeah, and I don't mean to be drawing that distinction.

[00:33:40] Speaker 02:
I do have one question for you.

[00:33:43] Speaker 02:
I know we're over, but on the let's assume that we actually have the Frito-Lay issue before us.

[00:33:50] Speaker 02:
Hypothetically, let's assume that it's before us.

[00:33:53] Speaker 02:
If we look at the text of 302C4, why isn't it right that even if there's a pre-termination window, that it still satisfies the second clause?

[00:34:03] Speaker 02:
Because at that point, it is still true

[00:34:06] Speaker 02:
that it's not irrevocable beyond the termination date, because there's an opportunity to revoke that would be effective beyond the termination date.

[00:34:14] Speaker 05:
I think that's not in keeping with the statute for the reasons that Anheuser-Busch and Atlanta Printing Specialties said much better than I can, which is that an employee gets to the point when his contract expires, he doesn't know what the new contract is going to be.

[00:34:31] Speaker 05:
He has no idea what's going to happen in this hiatus.

[00:34:34] Speaker 05:
Telling an employee that he has a pre-termination revocation window is not consistent with that piece of employee free choice that says, you don't yet know what is going to happen.

[00:34:49] Speaker 05:
You're forcing that employee.

[00:34:51] Speaker 02:
And the way you read the statute, the exact same thing would be true if a new CBA were entered into

[00:34:57] Speaker 02:
whose date was coterminous with the expiration of the first CBA.

[00:35:01] Speaker 02:
That employee still would also have never know what's going to be in the new CBA, but also would have no entitlement vis-a-vis termination.

[00:35:08] Speaker 05:
I think that's a quirk of the statute.

[00:35:10] Speaker 02:
But it's true, it's factually true that that employee would have no ability to exercise any revocation vis-a-vis termination.

[00:35:16] Speaker 05:
Well, there wouldn't be, because there would be no actual termination.

[00:35:20] Speaker 05:
I mean, that's, it is a quirk of the second part of it, so.

[00:35:24] Speaker 05:
Okay.

[00:35:24] Speaker 06:
So I, your response, perhaps, to Judge Srinivasan might be, if I understood his first hypothetical correctly, it would be satisfactory to have

[00:35:37] Speaker 06:
a revocation period for 30 days after signing.

[00:35:44] Speaker 06:
Well, I think that if Judge Schwinnibos and hypothetical were correct, then that would work too.

[00:35:51] Speaker 06:
And that is, and your view is that would clearly be inconsistent with the purpose of the statute.

[00:35:56] Speaker 05:
I think that's correct.

[00:35:58] Speaker 05:
I would conclude by saying all of this is about employee-free choice.

[00:36:04] Speaker 05:
And what we have in this case, boiled down, is a trickle of employees became a flood.

[00:36:11] Speaker 05:
Hundreds and hundreds of people are trying to exercise their Section 7 rights and head for the exits.

[00:36:16] Speaker 05:
And the union kept them from doing that for the obvious pecuniary reason that having more money is better than having less money.

[00:36:24] Speaker 05:
Thank you, Your Honors.

[00:36:51] Speaker 04:
Good morning, Your Honor.

[00:36:52] Speaker 04:
David Seifel, Labor Board.

[00:36:54] Speaker 04:
I'd like to start out by taking a step back and reminding the Court on the two uncontested grounds that led the Board to dismiss the complaint.

[00:37:03] Speaker 04:
First, the Board found that the authorization dues deduction signed by the employees was facially valid.

[00:37:10] Speaker 04:
Second, the board found that no charging party tried to revoke the authorization during any of the possible window periods, which the parties conceded included a window period, and this is at page 312 of the appendix, the parties conceded including a window

[00:37:28] Speaker 02:
based on the anniversary date of signing and a window period at the... So the fact that the parties conceded it before the ALJ decided it doesn't mean that much, I don't think, because you're talking about arguments made before the ALJ, right?

[00:37:43] Speaker 02:
So the parties make arguments before the ALJ, and I grant you that in those arguments before the ALJ, both sides seems to suppose that there was a pre-termination window.

[00:37:51] Speaker 02:
Now, if you look at the authorization, I don't see it in the authorization, but we can put that to one side.

[00:37:57] Speaker 02:
Both parties seem to suppose that.

[00:37:58] Speaker 02:
But the ALJ, after that, issues an opinion.

[00:38:02] Speaker 02:
And in the ALJ's opinion, it just doesn't talk about a pre-termination window.

[00:38:06] Speaker 02:
In fact, it says that there wasn't one, because the only possibility of revocation vis-a-vis termination is for those in the last year.

[00:38:14] Speaker 02:
Do you read the ALJ opinion differently?

[00:38:17] Speaker 04:
Your Honor, it is very possible to read the Administrative Logistics decision in that manner.

[00:38:21] Speaker 02:
Is it possible to read it differently?

[00:38:23] Speaker 04:
No, it's a reasonable interpretation.

[00:38:25] Speaker 04:
Is it possible to read it differently?

[00:38:26] Speaker 04:
No.

[00:38:27] Speaker 04:
No, but the board, Your Honor, but the important aspect here is what did the board do?

[00:38:31] Speaker 04:
And it is correct.

[00:38:32] Speaker 04:
The board didn't specifically clarify that.

[00:38:34] Speaker 04:
The board doesn't know.

[00:38:35] Speaker 02:
The board just affirmed the ALJ's opinion, right?

[00:38:37] Speaker 04:
The board affirmed, but again, with the recognition.

[00:38:40] Speaker 06:
Did the board say anything I can't remember?

[00:38:43] Speaker 04:
Yes, Your Honor.

[00:38:44] Speaker 04:
In Appendix B.H.

[00:38:45] Speaker 04:
307 and Quit No.

[00:38:47] Speaker 04:
2, the board said there is no evidence that any of the charging parties tried to revoke or even inquired about revoking their authorization during any of the possible window periods.

[00:38:59] Speaker 02:
Right, but we don't know what window – we don't know whether that means anniversary date of termination.

[00:39:05] Speaker 02:
I mean, if what you're going is saying that by saying any possible window periods, we should infer that that means the board assumed that there was a pre-termination window, that seems to be fairly heroic, because it doesn't say anything about termination.

[00:39:20] Speaker 02:
It just has possible window periods, which could be the same possible window periods the ALJ had in mind, which are the anniversary dates.

[00:39:26] Speaker 02:
And, of course, for anybody in the last year, but I don't think any of the petitioners are somebody who signed during the last year.

[00:39:35] Speaker 02:
Is that where you're going with that footnote?

[00:39:39] Speaker 02:
Sorry, I did not mean to step in.

[00:39:41] Speaker 02:
Is there any other indication besides that footnote that the board operated on an assumption contrary to the ALJs, which seemed to be that there was no pre-termination window?

[00:39:54] Speaker 04:
Your Honor, it would be in that footnote and whether the board could have been clearer in that footnote.

[00:40:00] Speaker 06:
Can we assume there was or was not a pre-termination window?

[00:40:04] Speaker 06:
What's the answer to that?

[00:40:07] Speaker 04:
As counsel I represent that the board is recognizing that there was for the purposes of the employees here they had a second window and no employee tried to take advantage of that window.

[00:40:20] Speaker 04:
Where was it?

[00:40:22] Speaker 04:
prior, Your Honor, as the parties recognized before the Administrative Law Judge, the window prior to the exploration.

[00:40:28] Speaker 04:
What was it?

[00:40:29] Speaker 02:
Because was there anything besides the arguments of the parties before the ALJ, is there anything, any letter, anything in the record that shows that anybody understood there was a pre-termination window?

[00:40:41] Speaker 04:
Your Honor, that was the argument that the general counsel tried to make below, that there wasn't really a second window, that there was confusion based on the letters.

[00:40:51] Speaker 04:
And the judge does recognize that there was a second window.

[00:40:55] Speaker 04:
He goes on to basically say it doesn't apply to everyone, but he does recognize that there was a second window.

[00:41:01] Speaker 02:
Where?

[00:41:01] Speaker 02:
He doesn't say there was a second window.

[00:41:05] Speaker 02:
Meaning a pre-termination window?

[00:41:07] Speaker 04:
Your Honor, at page 312 of the appendix, where at the trial when discussing the window period prior to the expiration of the contract, the general counsel conceded that both parties agree that during the 15-day window period,

[00:41:22] Speaker 04:
before October 2008 that the parties could revoke.

[00:41:25] Speaker 02:
But he doesn't accept that characterization.

[00:41:27] Speaker 02:
He's just talking about the general counsel's characterization.

[00:41:30] Speaker 02:
And then every time he describes it, he's saying that's beside the point.

[00:41:34] Speaker 02:
Because as I read this, I'm just trying to read this honestly, as I read this,

[00:41:38] Speaker 02:
What the ALJ is saying is, I know there's some supposition in the arguments that there was a pre-termination window, but as I, being the ALJ, as I read the authorization, there is no pre-termination window.

[00:41:49] Speaker 02:
The window has to do with the annual anniversary vis-a-vis execution.

[00:41:53] Speaker 02:
It doesn't have to do with termination.

[00:41:55] Speaker 02:
So there just wasn't one, and that's how he describes it every time he talks about it.

[00:41:59] Speaker 04:
And I understand that is what the administrative law judge did.

[00:42:01] Speaker 04:
OK.

[00:42:01] Speaker 04:
And whether the board.

[00:42:03] Speaker 06:
So what if the administrative law judge doesn't find a pre-termination window?

[00:42:07] Speaker 06:
How the devil can he rely on Frito-Lay?

[00:42:15] Speaker 02:
Right, because in Frito-Lay there was a pre-termination window.

[00:42:19] Speaker 02:
That was the whole issue in Frito-Lay.

[00:42:20] Speaker 06:
You don't understand my question.

[00:42:22] Speaker 06:
I'm mystified.

[00:42:25] Speaker 04:
I understand the question, Your Honor, because the Administrator of the Law Judge does cite Read LA as foreclosing certain arguments.

[00:42:33] Speaker 06:
That's what I noticed.

[00:42:35] Speaker 06:
When I read the opinion, I assumed there was a pre-termination window.

[00:42:39] Speaker 06:
Everybody litigating assumes it.

[00:42:42] Speaker 06:
The ALJ assumes it, but then says something confusing.

[00:42:47] Speaker 06:
So is there or is there not a pre-termination window?

[00:42:49] Speaker 06:
You're representing the board.

[00:42:51] Speaker 04:
As counsel for the board, that the parties understood there was a pre-termination window and no party tried to take advantage of it, and the board recognizes that basically whatever the window periods are, and the board does acknowledge that in earlier cases, like Atlanta Printing, it does suggest that there is a window period at both the anniversary and at the expiration of the contract.

[00:43:13] Speaker 04:
There's no indication that that wouldn't apply to everyone as opposed to people that just signed in the last year.

[00:43:17] Speaker 04:
Could the board have further clarified that here?

[00:43:21] Speaker 06:
Are we to assume there was a pre-termination window prior to the expiration of the Collector Bargain Agreement in this case in the Court of Appeals?

[00:43:30] Speaker 04:
Yes, Your Honor, and from the board's perspective,

[00:43:34] Speaker 04:
The parties understood that and no party.

[00:43:37] Speaker 02:
How can we assume that if the ALJ just flat out said there wasn't and that's what the board affirmed.

[00:43:45] Speaker 02:
There's just that I don't understand.

[00:43:47] Speaker 02:
It's like creating a case creating a hypothetical case that doesn't exist because the weather the ALJ was right or wrong.

[00:43:54] Speaker 02:
We can argue about whether the ALJ was right or wrong about this, because I understand that the parties took the position before the ALJ that there was a pre-termination window, as to which, by the way, there's absolutely no record as far as I can tell.

[00:44:04] Speaker 02:
But whether or not the ALJ was right or wrong, it seems pretty crystal clear from the ALJ's decision that the ALJ concluded that there was no pre-termination window.

[00:44:14] Speaker 02:
Still apply Frito-Lay, which raises an issue obviously, but that's the background against which this case comes to us.

[00:44:22] Speaker 02:
So we'd be deciding, it seems to me, a hypothetical case, because the decision affirmed by the board is one that said there's no pre-termination window, and then yet we'd be deciding a case on the assumption that there was a pre-termination window, which just seems to me what courts are not supposed to be doing.

[00:44:39] Speaker 04:
Your Honor, I remind the Court that this is a dismissal of a complaint and whether the Board could have been clearer in its footnote is debatable and arguable, but by stating that no employee tried to revoke during any of the possible window periods and given the earlier recognition of the parties,

[00:44:59] Speaker 04:
The board is not specifically clarifying whether there always has to be.

[00:45:03] Speaker 06:
You think the board's footnote modifies the ALJ opinion, which sometimes happens on the board.

[00:45:11] Speaker 06:
Is that what you're saying?

[00:45:13] Speaker 06:
The board has concluded there were window periods, so that's before us rather than the ALJ's opinion?

[00:45:20] Speaker 04:
Your Honor, honestly, the board didn't use the word modify.

[00:45:24] Speaker 06:
No, no, no.

[00:45:26] Speaker 06:
Typically, the board doesn't often do that.

[00:45:28] Speaker 06:
I'm quite familiar.

[00:45:29] Speaker 06:
Sometimes a footnote of the board de facto modifies the ALJ's opinion without stating we're modifying.

[00:45:37] Speaker 06:
Is that your position here?

[00:45:40] Speaker 04:
Your Honor, the board's position is simply that the parties recognize there are two windows.

[00:45:46] Speaker 04:
Nobody tried to escape during those two windows.

[00:45:51] Speaker 04:
And the board did not.

[00:45:53] Speaker 02:
It may be that nobody tried to escape because it didn't exist.

[00:45:56] Speaker 02:
Or at least there was no indication to anybody that existed.

[00:46:00] Speaker 02:
Even if the parties took that position, there's just no record anywhere of any knowledge.

[00:46:06] Speaker 06:
Isn't this a powerful argument for me, man?

[00:46:12] Speaker 06:
Utterly confused.

[00:46:15] Speaker 04:
No, your honor because the part of firm the board on this case you can affirm a dismissal based on the principle that the Below below is lose for some reason.

[00:46:27] Speaker 04:
We don't know why no there are your honor there are humans made below that either a window period didn't exist or that basically that the Union had tried to mislead if a window period didn't exist

[00:46:53] Speaker 04:
I'm sorry, Your Honor.

[00:46:54] Speaker 06:
Let me say again.

[00:46:56] Speaker 06:
If there was no window period, the union did not provide a window period prior to the expiration of the contract.

[00:47:04] Speaker 06:
And at the expiration of the contract, the employees sought to revoke it.

[00:47:10] Speaker 06:
It would clearly be an unfair labor practice for the union and the employer not to allow them to revoke.

[00:47:17] Speaker 04:
Your Honor, arguably, certainly for the ones that signed in the last year of the contract and arguably under the board's Atlanta printing decision, that everyone should have that opportunity.

[00:47:28] Speaker 06:
My answer to my question is yes.

[00:47:29] Speaker 06:
Is that not right?

[00:47:31] Speaker 04:
Yes, for the most, yes.

[00:47:36] Speaker 06:
Well, then we just take Judge Srinivasan.

[00:47:40] Speaker 06:
Do we decide that we can't affirm the board then?

[00:47:44] Speaker 06:
How can we possibly affirm the board in that situation?

[00:47:49] Speaker 06:
I don't envy your guy.

[00:47:50] Speaker 06:
Many, many, many years ago I was in your position arguing cases for the board.

[00:47:54] Speaker 06:
I've never seen one as strange as this.

[00:47:59] Speaker 02:
I would simply, again, whether this court might deem that the board's footnote... Let me ask you this.

[00:48:05] Speaker 02:
Let me put it to you this way.

[00:48:06] Speaker 02:
Suppose the footnote didn't exist.

[00:48:08] Speaker 02:
I'll get to the footnote because I have a question about the footnote.

[00:48:11] Speaker 02:
But let's suppose the footnote language didn't exist at all and everybody agrees, let's suppose everybody agrees that the ALJ decided this case on the assumption that there was no pre-termination window and in fact found that there was no pre-termination window.

[00:48:25] Speaker 02:
The board affirms, it comes to us briefed as it is.

[00:48:28] Speaker 02:
What would you have us do?

[00:48:31] Speaker 04:
Well, Your Honor, what the judge found was that under that 302C4 and his interpretation didn't require a pre-termination window.

[00:48:40] Speaker 04:
And whether that would be a proper interpretation of 302C4 as applied to the act and whether that would be a clear error that the board hadn't

[00:48:49] Speaker 04:
had it stated it's split, then of course it would be an issue.

[00:48:53] Speaker 04:
And I think as indicated earlier, it's not entirely clear that petitioners have really quite even made this.

[00:48:59] Speaker 02:
But let's just assume a way.

[00:49:01] Speaker 02:
Let's just say that, put aside whether they raised it properly or not.

[00:49:05] Speaker 02:
I'm just asking, what would the board have us do in that situation?

[00:49:09] Speaker 02:
I think the board would be hard pressed to say we should affirm

[00:49:13] Speaker 02:
which makes it seem like what the board would say is we should send it back.

[00:49:17] Speaker 02:
But I just want a clear answer.

[00:49:20] Speaker 04:
Well, Your Honor, there would certainly be an issue whether the – if the board didn't say anything, then the ALJ's decision as it stands, whether the ALJ misinterpreted the rights that employees have under Section 302C-4 as it relates to Section 8 of the Act.

[00:49:37] Speaker 02:
Which means that what?

[00:49:38] Speaker 02:
Then what would the board have us do?

[00:49:39] Speaker 04:
Well, the argument that the petitioners would be making to the board, to this court, is whether or not the board's interpretation as set forth by ALJ was a reasonable interpretation.

[00:49:49] Speaker 02:
And as I understand it, the board's own view of Atlantic printing is that there has to be some window associated with termination.

[00:49:56] Speaker 02:
The board takes the view that a pre-termination window is enough.

[00:49:59] Speaker 02:
That's free to lie.

[00:50:00] Speaker 02:
Your opposing counsel takes the view that no pre-termination window is not enough, but if there was no pre-termination window here either, then under the board's view under Atlantic Printing, as I understand it, then the board wouldn't be able to take the position that we should affirm the ALJ, because the ALJ thought there was no pre-termination window.

[00:50:20] Speaker 04:
Your Honor, the board's position would be that regardless of how the ALJ may or may not have interpreted 302C4,

[00:50:27] Speaker 04:
on the facts of this particular case, the parties ultimately, before this court, are not disputing that everyone had the opportunity to revoke at the termination of the contract.

[00:50:40] Speaker 04:
But we have an agency.

[00:50:41] Speaker 06:
At the termination of the contract?

[00:50:42] Speaker 04:
Well, at the window period.

[00:50:43] Speaker 04:
You mean the check termination.

[00:50:45] Speaker 02:
Excuse me, at the window period.

[00:50:47] Speaker 02:
But then you're constructing a hypothetical case.

[00:50:50] Speaker 02:
I mean, so the ALJ just didn't decide that.

[00:50:53] Speaker 02:
It just didn't.

[00:50:55] Speaker 02:
So whether you and the other side could agree on that till the cows come home, but then all you're doing is setting up a hypothetical case that we don't actually have before us if my assumption about the ALJ's opinion is right.

[00:51:08] Speaker 02:
Would you agree with that characterization?

[00:51:10] Speaker 04:
Your Honor, I would simply argue that whether or not the ALJ correctly interpreted 302C-4 is not the ultimate issue.

[00:51:18] Speaker 04:
The ultimate issue is on the facts of this case, whether the board reasonably dismissed it.

[00:51:23] Speaker 06:
If there was no rebate termination window, why did the ALJ conclude that there was no violation?

[00:51:34] Speaker 06:
If there was no pre-termination window under board law, the employees should have been entitled to revoke at the end of the contract, isn't it?

[00:51:43] Speaker 06:
That's clear.

[00:51:44] Speaker 06:
So why the devil does the ALJ conclude there's not a violation if there was no pre-termination window?

[00:51:51] Speaker 04:
Your Honor, because the Administrative Law Judge then recognizes Rito Lay and

[00:51:59] Speaker 04:
There are, there are discrepancies in the ALJ's decision.

[00:52:02] Speaker 04:
I can't stand here.

[00:52:03] Speaker 06:
Can you answer the point here?

[00:52:05] Speaker 06:
I'm really honestly confused.

[00:52:07] Speaker 06:
How could the ALJ conclude this was not a violation if he concludes there's no pre-termination window?

[00:52:14] Speaker 06:
Because even under Frito-Lay there had to be a pre-termination window allowing a revocation.

[00:52:20] Speaker 04:
Your Honor, because again, notwithstanding the judge's interpretation of 302C4, at the same time, he also did specifically recognize the party's understanding

[00:52:33] Speaker 04:
that there were window periods.

[00:52:35] Speaker 02:
No, I don't think so.

[00:52:39] Speaker 02:
I think what the ALJ did is the ALJ over read Frito-Lay.

[00:52:44] Speaker 02:
The ALJ thought that Frito-Lay stood for the proposition that even absent a pre-termination window, it's still okay.

[00:52:52] Speaker 02:
And here's why, because the ALJ thought the termination

[00:52:56] Speaker 02:
part of 302C4 still does work for those people who signed the CBA or who signed the authorization in the last year of the CBA.

[00:53:06] Speaker 02:
That's the work the ALJ thought was being done by that last clause.

[00:53:10] Speaker 02:
And as I read the ALJ's opinion, it's pretty crystal clear that what the ALJ is saying is

[00:53:13] Speaker 02:
Frito-Lay tells me that there doesn't have to be post-termination revocation.

[00:53:18] Speaker 02:
I know there's a revocation opportunity vis-a-vis termination for those people in the last year.

[00:53:23] Speaker 02:
Therefore, Frito-Lay tells me that this is OK, even though there's no pre-termination window for people who signed outside the last year.

[00:53:31] Speaker 04:
Your Honor, as I understood the Administrative Logic's decision, the reference to Frito-Lay

[00:53:39] Speaker 04:
was simply trying to, and if I could take a step back again for a minute, the general counsel had conceded and never disputed that the legitimacy or the application of Frito-Lay, that there were window periods, even the general counsel's argument.

[00:53:55] Speaker 06:
Well, that's totally confusing too.

[00:53:57] Speaker 06:
The general counsel's position is incomprehensible.

[00:54:00] Speaker 06:
I don't understand.

[00:54:02] Speaker 06:
He basically challenges Frito-Lay and says, I'm not challenging Frito-Lay.

[00:54:11] Speaker 06:
reach, I assume, if there is no pre-termination window.

[00:54:15] Speaker 06:
But I think we're reading a dead horse.

[00:54:18] Speaker 03:
Can you look at the language at page 311 of the appendix?

[00:54:24] Speaker 03:
The left column, about midway down, there's a paragraph that begins, it says, I first take time to individually address.

[00:54:35] Speaker 03:
And if you go to the third sentence there, it says,

[00:54:40] Speaker 03:
The letters, in fact, did not provide information of the dates on which the employees could next revoke their authorizations upon the expiration of the contract.

[00:54:54] Speaker 03:
Then the ALJ says, but remember no new contract had been reached, so there were no dates to provide.

[00:55:03] Speaker 03:
What does that mean?

[00:55:04] Speaker 04:
Your Honor, that, as I understand it, is a reference that after the contract had expired for employees who tried to revoke their dues and they were untimely based on their anniversary date, at that point there was no existing contract in effect.

[00:55:23] Speaker 04:
So there was no basis or reason for the letters to set forth.

[00:55:27] Speaker 04:
a window period based on contract expiration.

[00:55:31] Speaker 04:
And that's an argument that the petitioners have not raised any of the factual arguments that the administrative law judge has appealed by the board rejected.

[00:55:41] Speaker 03:
But doesn't that acknowledge that there is a pre-termination window?

[00:55:47] Speaker 03:
Based on the language in the check off authorization or else why would the LJ put the sentence in in the opinion.

[00:55:55] Speaker 04:
Your honor.

[00:55:57] Speaker 04:
Again, I would suggest that given the parties recognition on 312 on appendix page 312 that there are window periods.

[00:56:06] Speaker 04:
given the arguments raised by the general counsel, in which the general counsel acknowledged in the briefs to the administrative lodges that there were window periods, given some of the language here regarding that the letters were defective because it didn't contain a window period relating to the termination of a contract, since there was no contract in effect.

[00:56:25] Speaker 04:
that notwithstanding the judge's interpretation of 302C4 and whether that's correct or not.

[00:56:31] Speaker 02:
Well, read the next sentence, because the next sentence says, and unless the new collective bargaining agreement was to be for a term less than a year, then the anniversary dates described in the letters were indeed the next chance the employees could revoke their authorization.

[00:56:41] Speaker 02:
In other words, what the ALJ is saying is, yeah, there's an opportunity vis-a-vis termination for people in the last year.

[00:56:48] Speaker 02:
For anybody outside the last year, there's nothing vis-a-vis termination.

[00:56:53] Speaker 04:
Correct, Your Honor.

[00:56:53] Speaker 04:
And there's no question that the judge is suggesting that.

[00:56:56] Speaker 04:
And the board, and again, whether the board could have or should have clarified that based on its, say, Atlanta printing decision.

[00:57:04] Speaker 04:
But the bottom line is, given all of the party's recognition at the hearing, in the briefs to the judge, in the briefs to the board, that there were window periods.

[00:57:14] Speaker 04:
And that the particular facts are no longer being disputed, that the union had somehow misled the employees.

[00:57:20] Speaker 04:
That's not being disputed anymore.

[00:57:21] Speaker 04:
Certainly not before this court.

[00:57:22] Speaker 04:
The board is simply recognizing that no one tried to evoke during any of the potential window periods.

[00:57:31] Speaker 04:
Any of the potential window periods is referring to any of the window periods.

[00:57:37] Speaker 02:
But that's exactly the language one would use.

[00:57:39] Speaker 02:
I've written a million briefs that use this kind of language.

[00:57:42] Speaker 02:
That's exactly the language one would use if one were not answering the question of whether there was a pre-termination window, because what you'd be saying is any termination, any window, whatever they may be, was not one in which the employees exercised their option.

[00:57:56] Speaker 02:
That's exactly what you would say.

[00:57:57] Speaker 02:
So it's hard to read that language to counterman the factual predicate against which the ALJ decided the case.

[00:58:04] Speaker 04:
I understand the court's concern at the end of the day obviously the board's footnote stands on its own and I can only state that given the recognition particularly by the general counsel all the way through that there were two that ultimately that there were two window periods and the fact that

[00:58:22] Speaker 04:
What is dropped by the waistline at this point to this court is whether the union misled employees regarding those window periods.

[00:58:29] Speaker 04:
That was really the general counsel's theory below.

[00:58:32] Speaker 04:
And that's something that the petitioners are certainly not arguing to this court.

[00:58:35] Speaker 02:
OK.

[00:58:39] Speaker 02:
Thank you.

[00:58:40] Speaker 02:
Thank you.

[00:58:51] Speaker 01:
Good morning.

[00:58:52] Speaker 01:
May it please the Court, Kristen Martin Davis-Carolenbo, representing the Intervenor Union.

[00:58:57] Speaker 01:
I'm going to try to address the issue that you've been discussing with Council and maybe clear things up.

[00:59:02] Speaker 01:
The window period that all the parties believe preceded the termination date of the contract was in September of 2008.

[00:59:10] Speaker 01:
The ULP charges in this case were filed in December of 2009.

[00:59:13] Speaker 01:
Under Section 10B of the Act, there's a six-month statute of limitations.

[00:59:18] Speaker 01:
So even if the union disregarded a window period in September of 2008, it was outside of the statute of limitations.

[00:59:25] Speaker 01:
It's simply not an issue in this case.

[00:59:26] Speaker 06:
Wait a minute.

[00:59:27] Speaker 06:
Wait a minute.

[00:59:28] Speaker 06:
You're raising a new issue in this case now?

[00:59:30] Speaker 01:
I'm responding to the issue that was raised.

[00:59:33] Speaker 01:
by the court.

[00:59:36] Speaker 01:
I'm explaining why this apparent mistake, and I would agree this is a mistake in the ALJ's opinion by saying there's no... It's both a mistake of law and a mistake of fact that there's no pre-termination window.

[00:59:47] Speaker 06:
Is this a mistake of fact?

[00:59:50] Speaker 01:
It is a mistake of fact.

[00:59:51] Speaker 06:
There was such a thing as a pre-termination window?

[00:59:53] Speaker 01:
Yes, and I would point to... Where, how do we find it?

[00:59:55] Speaker 01:
To Joint Appendix 135, there's testimony from a

[01:00:03] Speaker 01:
and he's being asked what the union's position is, how the union has interpreted the authorization card, because one of the general counsel's theories was the authorization card was confusing.

[01:00:16] Speaker 01:
So this witness is being asked how the union interpreted this card.

[01:00:20] Speaker 03:
What page?

[01:00:21] Speaker 01:
305 of the Joint Appendix.

[01:00:26] Speaker 01:
And if I direct the court to starting on line seven, Mr. Zapala, that's the counsel for the union asking questions, he said, did you give direction about how to implement the dues checkoff to your staff?

[01:00:37] Speaker 01:
Answer, yes.

[01:00:38] Speaker 01:
Question, what direction did you give?

[01:00:40] Speaker 01:
Answer, that a window period 30 to 45 days prior to the anniversary date of signing it and prior to the expiration of the contract.

[01:00:50] Speaker 01:
So that was the union's, that was the evidence.

[01:00:52] Speaker 06:
There were two of them, prior to the anniversary date and prior to the expiration?

[01:00:55] Speaker 06:
of the contract.

[01:00:56] Speaker 06:
Yes, both.

[01:00:57] Speaker 01:
Yes.

[01:00:57] Speaker 06:
The anniversary date in the first clause of 302.

[01:01:03] Speaker 06:
And the contract is how many days, 30 days prior to?

[01:01:08] Speaker 01:
It's 45 to 30 days prior to the termination of each event.

[01:01:12] Speaker 06:
And let me say- So why does the ALJ say there's no window period?

[01:01:17] Speaker 01:
I don't know why.

[01:01:17] Speaker 01:
I think the ALJ just got that wrong.

[01:01:20] Speaker 01:
That's the only explanation I can provide.

[01:01:22] Speaker 02:
So it could be wrong, but it seemed to me that what the ALJ was doing was trying to read the authorization.

[01:01:27] Speaker 02:
And when the ALJ read the authorization, the ALJ just didn't think that the window part of the authorization applied to the termination as opposed to the anniversary.

[01:01:35] Speaker 01:
That may have been what the ALJ was doing in that part of the decision.

[01:01:41] Speaker 01:
That may be.

[01:01:42] Speaker 06:
But you wouldn't disagree.

[01:01:43] Speaker 06:
Did he have the actual language?

[01:01:45] Speaker 01:
Yes.

[01:01:45] Speaker 01:
The actual language is in evidence many times.

[01:01:47] Speaker 01:
But I can point the court to a page on which it appears.

[01:01:50] Speaker 01:
It would be appendix, joint appendix 133.

[01:01:52] Speaker 01:
That's the authorization card signed by one of the petitioners.

[01:01:57] Speaker 06:
And it explicitly gives a window period

[01:02:01] Speaker 06:
45 days before the expiration of the collective bargaining agreement?

[01:02:04] Speaker 01:
I will read it to you, Your Honor.

[01:02:05] Speaker 01:
The authorization and assignment shall be irrevocable for a period of one year from the date of execution or until the termination date of the agreement between the employer and Local 99, whichever occurs sooner, and from year to year thereafter,

[01:02:19] Speaker 01:
Unless not less than 30 days and not more than 45 days prior to the end of any subsequent yearly period, I give the employer and union written notice of revocation bearing my signature thereto.

[01:02:33] Speaker 06:
That doesn't refer to the collective bargaining agreement.

[01:02:36] Speaker 01:
It does, Your Honor.

[01:02:36] Speaker 06:
It's just the anniversary date.

[01:02:38] Speaker 01:
No, it says, and in the first clause, this authorization assignment shall be irrevocable for a period of one year from the date of execution or until the termination date of the agreement between the employer and the union.

[01:02:49] Speaker 06:
Well, it has no... Did I miss it?

[01:02:51] Speaker 06:
I don't see the window period prior to the termination of the collective bargaining agreement.

[01:02:55] Speaker 06:
Well, it first sets out... Wait a minute, wait a minute.

[01:02:57] Speaker 06:
Was there a window period prior to the termination of the collective bargaining agreement?

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

[01:03:02] Speaker 06:
I didn't hear it.

[01:03:03] Speaker 01:
Okay, let me explain how this language works again.

[01:03:06] Speaker 06:
Did you?

[01:03:06] Speaker 06:
Okay.

[01:03:07] Speaker 06:
I was listening carefully.

[01:03:12] Speaker 06:
hear a window period before the expiration of the collective argument?

[01:03:15] Speaker 01:
Well, the way the language works, it first sets out the irrevocability period, and then it sets out the window period that applies to each.

[01:03:22] Speaker 01:
So it says, and I believe this language is also reproduced in the ALJ's opinion, so one can look at it there as well.

[01:03:29] Speaker 07:
Read it.

[01:03:29] Speaker 01:
This authorization and assignment shall be irrevocable for a period of one year from the date of execution or until the termination date of the agreement between the employer and local 99, whichever occurs sooner,

[01:03:41] Speaker 01:
and from year to year thereafter, unless not less than 30 days and not more than 45 days prior to the end of any subsequent yearly period.

[01:03:51] Speaker 06:
I've read that too before this case, and that certainly doesn't suggest a window of period before the termination of collective bargaining.

[01:04:05] Speaker 02:
One way to ask that question is this.

[01:04:07] Speaker 02:
I read it, and candidly I read it, and I thought the same thing.

[01:04:10] Speaker 02:
When it's a subsequent yearly period,

[01:04:12] Speaker 02:
Maybe there's a way that you could read that to refer to termination, but the most straightforward reading seems to be that it refers to subsequent yearly period vis-a-vis anniversary dates.

[01:04:20] Speaker 02:
But just for comparison purposes, if you look at the language of the authorization in Frito-Lay, the one that the board considered in Frito-Lay, that was crystal clear that there was a pre-termination window.

[01:04:32] Speaker 02:
This is not

[01:04:33] Speaker 02:
Even if your position is that you should read it to have a pre-termination window, I think you would agree that it's not as clear, or even close to as clear, as was the language in Frito-Lay.

[01:04:47] Speaker 01:
Well, I would agree with that, but let me say this.

[01:04:50] Speaker 06:
Well, here's the problem.

[01:04:51] Speaker 06:
Here's the real problem.

[01:04:53] Speaker 06:
Put aside the question of how you interpret.

[01:04:55] Speaker 06:
How did the ALJ interpret?

[01:04:57] Speaker 01:
And that's, let me say this.

[01:04:58] Speaker 01:
The ALJ says, and the board says in the footnote, that no party can, or the general counsel, excuse me, does not challenge the facial validity of this language.

[01:05:08] Speaker 01:
So if this language did provide a pre-termination window, then yes, it would conflict with Section 302C4's proviso.

[01:05:14] Speaker 01:
And the ALJ says, look, the general counsel, and we can also find this in the general counsel's briefs directly, he says, I'm not challenging the facial validity of this language.

[01:05:22] Speaker 02:
But I don't think that tells us that the ALJ thought there was a pre-termination window, right?

[01:05:28] Speaker 01:
That's right.

[01:05:29] Speaker 01:
That doesn't tell us what the ALJ thought about this language, but it does tell us that the validity of this language wasn't before the ALJ.

[01:05:35] Speaker 06:
What we have before us is an agency determination.

[01:05:40] Speaker 06:
That agency determination is the ALJ determination, except as it might be modified by the footnote.

[01:05:46] Speaker 06:
It doesn't matter.

[01:05:53] Speaker 06:
Isn't Judge Srinivasan correct when he says the ALJ stated there was no window period prior to the expiration of the contract?

[01:06:04] Speaker 01:
I don't think that's correct.

[01:06:06] Speaker 06:
What did he say?

[01:06:07] Speaker 01:
What I think matters is what the party... Wait a minute.

[01:06:10] Speaker 06:
In other words, you're not objecting to my statement about, or Judge Srinivasan's statement about what the ALJ said.

[01:06:18] Speaker 06:
You're saying what the ALJ said doesn't matter.

[01:06:22] Speaker 01:
What I'm saying, I'm trying to identify the issue that was before the ALJ, and then subsequently before the court.

[01:06:27] Speaker 06:
No, I'm trying to decide what's the issue before us.

[01:06:29] Speaker 01:
OK, and then I was going to get to what the issue, because that is a very important issue in this case.

[01:06:33] Speaker 01:
And I would argue that none of this is before this court, because it wasn't raised on the field.

[01:06:38] Speaker 02:
That's a separate set of arguments based on the general counsel's arguments.

[01:06:41] Speaker 02:
But no, on this question of the ALJ, the way the ALJ conceded of the case and what that means for us,

[01:06:48] Speaker 02:
How, if the ALJ thought there was no pre-termination window, and it seems to me that you agree that the ALJ's opinion assumes away a pre-termination window.

[01:06:57] Speaker 01:
No pre-termination window specified on the card as opposed to what the parties didn't practice.

[01:07:02] Speaker 01:
I don't think it's clear about that distinction.

[01:07:03] Speaker 02:
Well, he didn't say anything about what the parties didn't practice.

[01:07:05] Speaker 02:
It may be true that the parties didn't practice what the JA305 says.

[01:07:10] Speaker 02:
That may be true, but the ALJ, that was somebody's testimony, and the ALJ didn't ratify that.

[01:07:16] Speaker 01:
But then I come back to my first point.

[01:07:18] Speaker 01:
Let's assume there was no pre-termination window in this chart.

[01:07:22] Speaker 01:
And that pre-termination window, when it should have existed, but the ALJ found it didn't, would have come up in September of 2008.

[01:07:28] Speaker 01:
OK.

[01:07:28] Speaker 01:
That's far outside the statute of limitations of the events that were even before the ALJ, because the ULP chart wasn't filed until December of 2008.

[01:07:38] Speaker 01:
So let's assume the theory, the argument wasn't.

[01:07:40] Speaker 02:
What's the implication of that?

[01:07:41] Speaker 02:
So it's outside the, it just.

[01:07:43] Speaker 01:
Here's the implication is that what the parties were arguing about, why these charges got filed, and why the general counsel brought this case was because we're in a period of successive short-term extensions to the collective bargaining agreement.

[01:07:57] Speaker 01:
We're in 2009.

[01:07:57] Speaker 01:
This contract expired in 2008.

[01:07:59] Speaker 01:
The general counsel thought there was a few things that were confusing that took this case out of Frito-Lay and may create, in his mind, an exception to Frito-Lay.

[01:08:10] Speaker 01:
And one of those things was he thought the language on the card was ambiguous.

[01:08:14] Speaker 01:
But then he went back and said, but I'm not contesting the language on the card.

[01:08:18] Speaker 01:
And I can't prove this, but I think that's probably because it was outside of the statute of limitations.

[01:08:22] Speaker 01:
It didn't really bear on it.

[01:08:23] Speaker 01:
Then he said these letters that were brought up were confusing.

[01:08:28] Speaker 01:
And here's what happened with those letters.

[01:08:30] Speaker 01:
And I can give the court an example of one, which is that joint appendix

[01:08:35] Speaker 01:
135.

[01:08:35] Speaker 02:
Well, the letters aren't going to be that helpful because the letters are all post-expiration.

[01:08:40] Speaker 01:
Yeah, exactly.

[01:08:41] Speaker 01:
So they're not going to tell us whether there was a pre-termination window.

[01:08:44] Speaker 01:
Exactly.

[01:08:44] Speaker 01:
But the general counsel's argument was these letters are confusing because they don't set out the pre-termination window.

[01:08:50] Speaker 01:
And they didn't set them out because the work happened.

[01:08:52] Speaker 02:
I grant you that.

[01:08:53] Speaker 02:
I grant you that.

[01:08:54] Speaker 01:
But that's what this case was about.

[01:08:56] Speaker 01:
That's the theory the general counsel brought before the ALJ and the board, which was that these things that were occurring in 2009,

[01:09:03] Speaker 01:
far beyond the pre-termination window, were causing a lot of confusion, and therefore somehow that operated to make these authorization cards revocable.

[01:09:14] Speaker 02:
So would you agree with the following proposition that if there were no pre-termination window, put aside the statute of limitations question for a second, if there were no pre-termination window, then there's a problem under 302C4?

[01:09:27] Speaker 01:
not necessarily under section 8, but under section 302C4.

[01:09:31] Speaker 01:
I agree that section 302C4's proviso requires a pre-termination window.

[01:09:36] Speaker 01:
At least a pre-termination window.

[01:09:37] Speaker 01:
At least a pre-termination window.

[01:09:39] Speaker 01:
Some opportunities to revoke at the termination of the collective bargaining agreement.

[01:09:42] Speaker 02:
And so what we would be in the position of doing, it seems to me, is

[01:09:46] Speaker 02:
deciding whether a pre-termination window is enough in a case in which there isn't a pre-termination window.

[01:09:56] Speaker 02:
That just seems to me to be an odd place to be as a court because the ALJ thought there wasn't a pre-termination window and the way every party has teed this up is decide whether a pre-termination window, which by the way wasn't there, is enough.

[01:10:12] Speaker 01:
Well, because the parties are arguing, and again, we argue that the Frito-Lei issue isn't even properly before the court, and I want to get to that.

[01:10:21] Speaker 01:
But the parties were arguing about whether there was an opportunity to revoke during the hiatus, and because the events in this case occurred during the hiatus.

[01:10:31] Speaker 01:
to the collective bargaining agreement.

[01:10:33] Speaker 01:
And the general counsel's theory was that these authorizations could be freely revoked during this hiatus period.

[01:10:41] Speaker 01:
Not because of Frito-Lay, or not inconsistently with Frito-Lay, I should say, but he had another theory, this sort of amorphous confusion theory that was shifting, as the ALJ says, and inconsistent.

[01:10:52] Speaker 01:
But it wasn't about because the union didn't give employees an opportunity to revoke back in 2008.

[01:10:58] Speaker 01:
That wasn't the theory.

[01:11:00] Speaker 02:
That may well be right.

[01:11:01] Speaker 01:
And so what I would say then is to follow up and continue on this point is, so the ALJ gets this point wrong about how to interpret something that occurred outside of the statute of limitations.

[01:11:11] Speaker 01:
I'm saying it's irrelevant, but even if it is relevant, even if it were within the statute of limitations, then it's just an error in his fact-finding, right?

[01:11:24] Speaker 01:
Maybe it's a substantial evidence error, but that's all it is.

[01:11:27] Speaker 06:
You're talking about the ALJ?

[01:11:28] Speaker 01:
Yeah, but it doesn't change the outcome of the case, I think, in any way.

[01:11:35] Speaker 01:
We send it back, we know what the result is, because we all agree on what the result is.

[01:11:39] Speaker 01:
And it doesn't change the outcome.

[01:11:40] Speaker 02:
No, but we don't have an agency, we don't have an agency determination against the correct factual predicate.

[01:11:46] Speaker 02:
I mean, we might want to hypothesize what the agency would do, but we're not supposed to do that.

[01:11:51] Speaker 02:
And the positions of counsel before us can't tell us what the agency, in fact, would do.

[01:11:56] Speaker 02:
What we have is an agency decision based on a factual predicate that's not the one that informs the legal issue that is being asserted before us.

[01:12:05] Speaker 01:
But it's also irrelevant because it's outside of the statute of limitations.

[01:12:08] Speaker 01:
Can I come back to that point?

[01:12:09] Speaker 06:
Well, that's a subtle question, the statute of limitations.

[01:12:12] Speaker 06:
You can run it from the end of the contract.

[01:12:14] Speaker 06:
You can run it from different times.

[01:12:16] Speaker 06:
But we don't have to get into that.

[01:12:18] Speaker 01:
Your Honor, it runs from when the charges were filed.

[01:12:20] Speaker 01:
And the charges were filed.

[01:12:21] Speaker 06:
Well, wait a minute.

[01:12:21] Speaker 06:
Did the board conclude there was anything outside the statute of limitations?

[01:12:25] Speaker 06:
No.

[01:12:26] Speaker 06:
Then that's not the force.

[01:12:27] Speaker 01:
OK.

[01:12:28] Speaker 01:
OK.

[01:12:28] Speaker 01:
So then I would turn to what we see as the primary issue in the case, is what's before this court?

[01:12:37] Speaker 01:
Because the sole issue or the sort of linchpin issue that petitioners have raised is this Frito-Lay issue.

[01:12:45] Speaker 01:
The court has raised now one reason why perhaps that's not properly before the court.

[01:12:50] Speaker 01:
But the petitioners certainly haven't raised these flaws with the ALJ's opinion.

[01:12:56] Speaker 01:
Secondarily, the Frito-Lay issue wasn't the general counsel's theory.

[01:13:00] Speaker 06:
Yes.

[01:13:04] Speaker 06:
Council takes a position which de facto challenges free to lay but doesn't

[01:13:12] Speaker 01:
it differently, Judge Silverman.

[01:13:13] Speaker 01:
I think what the general counsel says, and that's why we submitted the supplemental appendix with Judge Silverman's brief, or I'm sorry, with the general counsel's briefs on the exceptions, is what the general counsel says is he cites Frito-Lay with approval.

[01:13:28] Speaker 01:
He says a union can use a window period prior to contract termination and revocation to that window period and provide them for automatic remittals.

[01:13:37] Speaker 01:
So he says, Frito-Lay's the law.

[01:13:39] Speaker 01:
I'm good with that.

[01:13:40] Speaker 01:
And then he goes on to develop this theory based on this sort of confluence of facts that he believed caused confusion, and he's essentially arguing for a fact-specific exception to Frito-Lay.

[01:13:51] Speaker 01:
That was the General Counsel's theory.

[01:13:53] Speaker 01:
And, you know, the Employers' Council argued in opposition to the General Counsel.

[01:13:58] Speaker 01:
The general counsel must be trying to overrule Frito-Lay, and the general counsel said in his reply brief very clearly, no, I'm not trying to overrule Frito-Lay, I'm not putting that issue before the board.

[01:14:08] Speaker 01:
So I would argue that to allow petitioners to raise this Frito-Lay issue in this court,

[01:14:15] Speaker 01:
when it wasn't something that was raised before the ALJ by the General Counsel, and it wasn't something that was raised or considered by the Board, so it wasn't something the Board adjudicated, interferes with the General Counsel's prosecutorial description.

[01:14:27] Speaker 06:
Well, the ALJ relied on Frito-Late, did he not?

[01:14:29] Speaker 01:
Sure, as a foundational proposition.

[01:14:31] Speaker 06:
That's the important precedent.

[01:14:37] Speaker 06:
So I don't see why that is not before us, if the ALJ

[01:14:49] Speaker 06:
pointing out.

[01:14:59] Speaker 01:
May I make one final point?

[01:15:01] Speaker 01:
One final point, sure.

[01:15:03] Speaker 01:
The general counsel, excuse me, the board under section 10b of the act has discretion to limit what parties who appear before in its administrative proceeding do.

[01:15:12] Speaker 01:
And one thing the board makes clear is that parties cannot present different theories than the general counsel presents.

[01:15:19] Speaker 01:
They can present evidence, they can call witnesses, they can file briefs, but they can't enlarge upon the general counsel's theory, even if those theories are within the scope of the complaint allegations.

[01:15:29] Speaker 01:
And so by allowing either the charging parties to introduce this issue, or by saying merely because an ALJ cites a case, that case is open to being reviewed by the court of appeals, I think that would open up a lot of law to review that was never within something that the general counsel issued a complaint on or prosecuted.

[01:15:59] Speaker 02:
Thank you very much.

[01:16:04] Speaker 02:
Mr. Taubman will give you two minutes back.

[01:16:07] Speaker 05:
Thank you, Your Honor.

[01:16:08] Speaker 05:
I'll try not to beat a dead horse.

[01:16:11] Speaker 05:
Just a few points.

[01:16:12] Speaker 05:
This last point is the biggest red herring in this case.

[01:16:15] Speaker 05:
In their supplemental appendix, they find one quote, one inapt quote, where the general counsel says something about, we're not challenging Frito-Lay.

[01:16:27] Speaker 05:
But if you look through all of the briefing in this case, if you look at other places in that same supplemental appendix, if you look at the special appeal that the

[01:16:37] Speaker 05:
General Counsel filed to the Board in July 26, 2010.

[01:16:42] Speaker 05:
Constantly, the General Counsel is saying, quote, employees checkoffs became revocable at will after October 25, 2008, and the Respondent Union's failure to honor those checkoff revocations after this date violated the Act.

[01:16:57] Speaker 05:
So they're just creating out of whole cloth a red herring here to try to say that this issue cannot be raised by the petitioners when all we've done is mimic what the general counsel has done.

[01:17:09] Speaker 05:
Now, back to the merits.

[01:17:13] Speaker 05:
The pre-termination window would not have been enough, even if it was there, it would not have been enough

[01:17:23] Speaker 05:
for the general counsel's theory and our theory of this case, because we all argue that there was a right to revoke at will beyond the termination date.

[01:17:35] Speaker 06:
The problem that Judge Strenvasson keeps pointing out is if there was no window period preceding the termination of the contract under board law, this

[01:17:53] Speaker 06:
So you're raising a hypothetical case.

[01:17:57] Speaker 05:
I'm happy to win on that basis but I would just add the last point and then I would be done and that is if you look at the bottom of appendix page 310 and the top of page 311, the ALJ says with regard to the allegations of the complaint about the revocation, he said these allegations rise or fall

[01:18:18] Speaker 05:
on whether or not the employees had to revoke their checkoff authorizations during time periods that are not specified in the authorizations that they had signed.

[01:18:29] Speaker 05:
And then he cites Frito-Lay.

[01:18:31] Speaker 05:
So in other words, the ALJ was saying,

[01:18:34] Speaker 05:
I think, regardless of whether there was a pre-termination or not, the allegations of this complaint, and if you specifically look at the E paragraphs of the complaint, the allegations of this complaint deal with whether there's a right to revoke at will beyond the termination date.

[01:18:54] Speaker 05:
That's what the ALJ ruled upon.

[01:18:56] Speaker 05:
That's what we've argued all along.

[01:18:58] Speaker 05:
So I don't think I can

[01:19:01] Speaker 05:
say anything else than that, but I think the issues are presented for the court, and I ask the court to rule in our favor.

[01:19:08] Speaker 02:
Thank you, counsel.

[01:19:09] Speaker 02:
Thank you, counsel.

[01:19:10] Speaker 02:
The case is submitted.