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Case number 14-1185, Laura Sands Petitioner versus National Labor Relations Board.

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Mr. Solman for the petitioner, Mr. Engelhardt for the respondent, and Mr. Coppice for the intervener.

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May I please the court?

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My name is Aaron Solon.

[00:00:37] Speaker 02:
I represent Petitioner Laura Sands.

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Per the court's directive, I'm going to spend my time discussing mootness.

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As this case, I think we can all agree on the merits as controlled by Penrod and this court's decision in Abrams.

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We contend this case is not moot because Sands still maintains her right to a notice posting remedy.

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this court and other courts.

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She's announced, do we have any reason to think that she'll return to work at Kroger?

[00:01:06] Speaker 02:
No.

[00:01:06] Speaker 06:
In fact, she said the otherwise, right?

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So what's her interest in the posting?

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Her interest in the question is the notice posting is an affirmative remedy It's the traditional board remedy and that applies even when the resumption of unfair labor practices and likely such as there's no interested party Pressing for that.

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I mean the cases that you cite are all cases in where the board has a continuing interest the union has a continuing interest I couldn't find any cases where

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the employee who's no longer party and is the who ought to have who has a possible interest, but the employee is no longer in response to the to the board's 28 J letter last Friday, which cited galley.

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We cited Montague in our response yesterday.

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Montague dealt – is from the case from the Sixth Circuit – dealt with two employees.

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The factory was sold.

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They no longer worked for that employer.

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The union was no longer trying to attempt to represent them.

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What is at issue in Montague was a case that dealt with a pre-recognition agreement, and the union never even represented the employees in Montague.

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Yet the Sixth Circuit held.

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that the notice posting still kept the case alive because of the board's interest, and the employees still had Article 3 standing to challenge the board's refusal.

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But the board obviously isn't seeking that.

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Isn't that the difference between this case and the Sixth Circuit?

[00:02:29] Speaker 02:
No, no, the board is seeking a notice posting, and they saw a notice posting below.

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And just like in Montague, the charging party lost before the board.

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And the Sixth Circuit found in Montague that it was sufficient to have Article III standing.

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And I just want to say it's consistent with the Supreme Court's decision in Knox, which held that as long as any remedy remains, no matter how slight, although we wouldn't say a note is posting a slight, that it still gives a petitioner Article III standing.

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And the Bull really cites no cases, nor does the Union cite any cases.

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that deal with a case where the petitioner sought a notice posting.

[00:03:11] Speaker 07:
You're also seeking the money back, right?

[00:03:14] Speaker 02:
She is seeking the money back.

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The union now has tendered a refund.

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It's tendered, and we would admit it's more than she could have received otherwise.

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She's not cashed the check.

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She's rejected the check.

[00:03:27] Speaker 02:
Well, we don't think Campbell Ewald has.

[00:03:28] Speaker 06:
What do you mean she's rejected the check?

[00:03:30] Speaker 02:
Well, she hasn't passed it.

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It's more than six months old.

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She is not going to cash the check.

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She could still receive an order from the board.

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But you've said in your opening, in your reply brief, you've said that quote, she lacks standing for this remedy, that is standing.

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That's what she's saying in your reply brief.

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I think we're in our... I think your whole argument here is a way, if you say, you're reading from the reply brief, you're going to have her refunded all of her dues after she filed, so she now lacks this remedy.

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I would say I think we're inarticulate in saying it.

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You think what?

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I think it was inarticulate.

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I think it should have been she was tendered to do this, because unless she has cash.

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You say in the reply brief, in no uncertain terms, that she, quote, lacks this.

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That's a waiver.

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I don't think it's been waived because, you know, Campbell-Ewald was cited, and we were just attempting to differentiate from Campbell-Ewald.

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I'm just talking about what you said in your brief.

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I think it's a fact.

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Unless she actually has cashed the check, I don't think she's actually, my client has actually accepted the money.

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I don't really think that is... I didn't say that at all.

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I take your point about that.

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Just tell me once again why, just from a litigation point of view, from filing a brief response and all that, why this sentence doesn't waive your argument about standing to seek a monetary damage?

[00:05:07] Speaker 02:
Why she doesn't?

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Because she hasn't actually received the money she's received in check?

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No, in terms of what you said in your brief.

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In terms of what I said in the brief, in terms of refunds.

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You see the sentence I'm talking about?

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Yes, I understand the sentence you're talking about.

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It says she was refunded dues.

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And so just tell me.

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I think looking at Campbell Ewald.

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You may be right.

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I just need to hear the argument.

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Looking at Campbell Ewald.

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And understanding what it said there, that there's, when there's a rejected settlement offer, rule 68 purpose.

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And that we were just nearly attempting to distinguish that case from the board citation of Capitol Ewald here.

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And just looking at the actual facts, she has not actually received the money.

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She's received a check, but she hasn't cashed it, and the check is old.

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It may not be cashable at this point.

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When did you learn that?

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That's not part of your brief, is it?

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That she received it but didn't cash it?

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When did you learn that?

[00:05:59] Speaker 06:
Well, just after you wrote the brief.

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Well, can we wall?

[00:06:05] Speaker 07:
Yeah, prompted you to make the argument that you weren't otherwise make.

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Yeah, the boards, the board's citation of Campbell, you all last Friday prompted us to make this distinction.

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But Campbell, you all doesn't hold his army found out that she hadn't cashed.

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We've known for a couple months now, but looking at Kimberly, well, we didn't really think it was even important after reading that decision to cite it.

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I don't know if that's the answer, but she doesn't want to move.

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She doesn't want to have the case be moved, and she still wants to enforce the board's notice posting for certain.

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Right.

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I know.

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I'm just talking about the check part.

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I realize I'm trying to keep distinct the two separate ways this might not be moved.

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Right.

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But I just want to be clear, I keep trying to come back to this, is that we don't think, Campbell, you all, that this discussion really has a lot of pertinence in the fact that the notice posting remedy still remains.

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But if we – this is why I'm bringing up the check.

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If we disagree with you on that, then all you have is the check.

[00:07:08] Speaker 02:
No, no, no.

[00:07:08] Speaker 02:
I think we also have something else.

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And we have the Eighth Circuit's decision in blue, which gives third party standing.

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Oh, yeah.

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And this is another issue that the briefs are, frankly, very light on this in terms of opposing our position.

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But Sands stands as a class representative.

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The board's notice posting and remedial power, she's as a charging party.

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And the board, she stands in place of the board.

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And the board sought a similarly situated remedy below in the in the in the complaint in the it says not only violates.

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Is there any hindrance to other Kroger workers pursuing this?

[00:07:49] Speaker 02:
Well, yes.

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I thought our third standing analysis required that there be some hindrance before she can become before she can invoke third party standing.

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It requires that there to be similar situated and they are hindered.

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if they all received an effective back notice.

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Because they have to make, as this court found in Penrod, as the Supreme Court found in Hudson, they have to make their decision whether or not to object in the dark.

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And if there's going to be a large class... I'm sorry, I don't understand that.

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What is there preventing a Kroger worker from making the same claim that she's making right now?

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Why can't the Kroger workers make the same claim she's making right now?

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Why do they need her?

[00:08:29] Speaker 02:
Well, because she's standing as a class representative.

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They obviously could bring it, but as the Eighth Circuit found in Bloom, that

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You know, the charging party stands in the place of the entire class and all those who are similarly situated.

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And that's what the board sought in this case.

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And that is also the remedy that is most common.

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And indeed, the normal remedy in that case is we cite Rochester Manufacturing and the New York NYP Holdings case.

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The board usually gives retroactive class-wide remedies in these situations.

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And I'm running down a little bit on my time.

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But generally, this court has a long set of cases that say the factory closing, there's no more factory.

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That doesn't move the case.

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There's this court's decision in the ALJ case said the fact that there was no more parking lot, and they weren't even negotiating over parking lots.

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That didn't move the case.

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The death of the employee in local 1941 did not move the case.

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I'm just looking back at my notes on Bloom here.

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My notes say that in Bloom, she did not get a refund.

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Yes, but the court found alternative third party standing to seek that same remedy on behalf of everyone.

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And just like the Supreme Court found in Sosa, after a class is certified, and the class is technically, I would say, certified when the NLRB issues the complaint and seeks a relief for all employees, she stands as a class representative in the mooting, the possible mooting of her damages claim.

[00:10:07] Speaker 02:
does not take away that right to seek a class-wide remedy, just like the mooting of a claim after a class certification does not take away that right.

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Does vacatur have any practical implications either way?

[00:10:21] Speaker 03:
Well, what difference does it make?

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The board's got its precedent.

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The board's, whether this decision's there or not, it's not going to make any difference.

[00:10:30] Speaker 02:
Well, I think it does have a practical, is that the board will thumb its nose at the opinion of this court.

[00:10:37] Speaker 03:
Well, it's done that already.

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What's the difference?

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The general counsel has a right to do that.

[00:10:42] Speaker 02:
I don't think that the board has a right to not follow the opinion of this court.

[00:10:48] Speaker 03:
You don't?

[00:10:48] Speaker 02:
No, no.

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It's non-acquiescing to the opinion.

[00:10:52] Speaker 03:
Right.

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And as we cite in our brief, this is a serious problem.

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We're still arguing.

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Penrod was decided 16 years ago.

[00:10:59] Speaker 02:
Yes, I know that.

[00:11:01] Speaker 02:
I know you know very well, Judge Tatel.

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Abrams was decided 20 years ago.

[00:11:05] Speaker 02:
Yes, right.

[00:11:06] Speaker 02:
And we're still arguing over whether the board hasn't finished.

[00:11:10] Speaker 02:
But the board takes a position on the merits that is inconsistent with every single House case.

[00:11:18] Speaker 06:
It's inconsistent with... If we were to vacate the board's decision in that case, what does that do to the larger issue?

[00:11:24] Speaker 02:
Well, it would...

[00:11:26] Speaker 02:
It would leave the general counsel.

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The general counsel has ultimate discretion whether or not to bring the complaint.

[00:11:31] Speaker 02:
It would be hard.

[00:11:32] Speaker 02:
It would be hard to see how the general counsel would ever bring another complaint based on this issue because they're going to always point to sans.

[00:11:40] Speaker 03:
Aren't there similar decisions by the board in other circuits?

[00:11:44] Speaker 03:
Reaching the same conclusion?

[00:11:46] Speaker 02:
Reaching the same conclusion as?

[00:11:48] Speaker 03:
Is this the only one?

[00:11:49] Speaker 02:
As the board?

[00:11:50] Speaker 02:
Yeah.

[00:11:50] Speaker 02:
Or as the board in Penrod?

[00:11:51] Speaker 02:
You mean conflicting with the board?

[00:11:54] Speaker 02:
No, it's the board in this case.

[00:11:55] Speaker 02:
In this case?

[00:11:55] Speaker 02:
Yeah.

[00:11:56] Speaker 02:
Is this the only one?

[00:11:58] Speaker 02:
No, no, this is not, well, you're talking about California Song, which is the only other case that I'm aware of.

[00:12:05] Speaker 02:
This issue wasn't even before the Seventh Circuit in California Song.

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And it is a very terse one line that says, this is for the board.

[00:12:14] Speaker 02:
But if that conflicts, the application of Hudson, really, is not, I would argue, for the board, because the board has no deference.

[00:12:24] Speaker 06:
So is your argument that if we granted vacatur in this, that it would take

[00:12:30] Speaker 06:
a tool away from the general counsel, is that your point?

[00:12:34] Speaker 02:
No, no, no, no.

[00:12:35] Speaker 02:
It would give a tool to the general counsel.

[00:12:37] Speaker 02:
They would have to issue another complaint, but they would likely never issue another complaint.

[00:12:42] Speaker 02:
That's what we stated in the briefs, is that they're likely not going to issue another complaint, and they're going to fund its nose at this court's ruling in Penrod, and they're going to refuse to enforce it in perpetuity, most likely.

[00:12:56] Speaker 02:
Thank you.

[00:12:56] Speaker 02:
Anything else?

[00:12:57] Speaker 03:
No, OK.

[00:13:03] Speaker 04:
May it please the court, my name is Robert Engelhardt for the National Labor Relations Board.

[00:13:08] Speaker 04:
With respect to mootness, I think at a starting point would be to look at the terms of the complaint and also the charge.

[00:13:14] Speaker 04:
In terms of the complaint on Joint Appendix 39, it references the harm personal to Laura Sands.

[00:13:20] Speaker 04:
So Laura Sands, it doesn't reference the other members of the bargaining unit or similarly situated employees.

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Nor does the charge filed by Laura Sands in this case on page 37 reference any other firm other than to Laura Sands.

[00:13:33] Speaker 04:
We now know that Laura Sands has been offered the check.

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We also have heard the argument that she continues to have an interest in receiving a cease and desist order and a notice.

[00:13:46] Speaker 04:
I think the Scali and Orsi cases that we've cited to the court suggest that that an employee's interest in a notice and cease and desist

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is no longer a live issue when that employee has left the workplace.

[00:14:02] Speaker 04:
And I would like to spend a second talking about Montague because that's a very interesting case and has a couple of wrinkles that did prevent the board from arguing mootness in that case.

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There, the employer was an employer of 70 facilities, and the employer itself had been charged with entering into an illegal prerecognition agreement.

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While the board did not find a violation, if the court had ordered the board to find one, the board considered it within its jurisdiction to order a cease and desist that would have been 70 facility wide.

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The facility that the two charging parties were petitioners in that case

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saw a review from had closed.

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Normally, that would have affected their standing, except for the fact that if a company-wide notice was to be issued,

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The board would have ordered that that notice have been mailed to them personally.

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So the interesting wrinkle is that their interest in having the personal notice mailed to them was an aspect of that case.

[00:15:05] Speaker 04:
They did prevent the board from suggesting mootness in that case.

[00:15:08] Speaker 04:
That's not currently in the case here.

[00:15:10] Speaker 04:
I would suggest this case is much more along the lines of a galley in the North Sea.

[00:15:14] Speaker 07:
What about the check?

[00:15:15] Speaker 07:
It's not cashed under Campbell Ewald.

[00:15:18] Speaker 07:
It seems unilateral.

[00:15:20] Speaker 07:
There might be a waiver issue, but put that aside for the second.

[00:15:22] Speaker 07:
If there's not a waiver issue, isn't this clearly still a live controversy under Campbell Ewald?

[00:15:28] Speaker 04:
Campbell Ewald seems to address the question of an unaccepted settlement offer.

[00:15:33] Speaker 04:
I guess before the court would be the question of whether what was offered here was a settlement offer or for relief.

[00:15:40] Speaker 07:
On my understanding or offer of judgment, it says on Campbell, you walled unaccepted settlement offer or offer of judgment does not move to plan this case.

[00:15:50] Speaker 04:
My understanding here is that the until the response of yesterday that they offer was a full settlement of how can it be a full settlement if it's not accepted?

[00:16:03] Speaker 07:
It was a letter out of the blue, right?

[00:16:07] Speaker 04:
Yes, it was a letter out of the blue in November of 2000.

[00:16:10] Speaker 07:
There's no indication of acceptance, and we know, except the representation, I assume you know the check hasn't been cashed.

[00:16:20] Speaker 07:
So that seems, again, there's a waiver issue, and I'll get to that, but it seems pretty clear it's not mooted under Campbell E. Walton.

[00:16:27] Speaker 04:
Well, if that's the opinion of this court, I understand.

[00:16:31] Speaker 04:
But it's the board's view that until the representation was made that she'd not cash her.

[00:16:36] Speaker 04:
We do not know whether it was even given to her, I guess, at this point.

[00:16:39] Speaker 04:
Was it transmitted by her attorneys to her to cash?

[00:16:42] Speaker 04:
Did she have the option?

[00:16:43] Speaker 07:
Well, that hurts you not helps you on mootness, right?

[00:16:47] Speaker 04:
Well, the client's interest, I assume, would be important to know whether the client had been given the check.

[00:16:55] Speaker 03:
Well, all we know from the union's brief is that they just say the check wasn't returned, right?

[00:17:11] Speaker 03:
So it wasn't cash, we know that, right?

[00:17:15] Speaker 04:
We have no evidence of it being cash.

[00:17:18] Speaker 03:
I mean, in fact, we know it was.

[00:17:24] Speaker 03:
which it didn't, right?

[00:17:26] Speaker 03:
Right.

[00:17:26] Speaker 03:
Okay.

[00:17:28] Speaker 03:
By the way, what do you, if we think it's mood, what do you think about vacatur?

[00:17:32] Speaker 04:
Well, I think I noticed that Galley did vacate the board's decision.

[00:17:38] Speaker 04:
One issue in vacature seems to be whether there's an order to be vacated.

[00:17:42] Speaker 04:
And when there's a dismissal of an unfair labor practice, there's no order as such.

[00:17:46] Speaker 04:
But I appreciate that the court may have a different view and entertain vacature.

[00:17:52] Speaker 03:
Does the board have a view?

[00:17:53] Speaker 03:
Do you care?

[00:17:54] Speaker 04:
I think that the board is agnostic on this point, Your Honor.

[00:18:00] Speaker 04:
If I could just say that I should have used the word agnostic.

[00:18:03] Speaker 04:
That's a much better word.

[00:18:04] Speaker 03:
Thank you.

[00:18:07] Speaker 04:
I feel that I would be remiss if I didn't say that we've come to a point on this particular issue where the board recognizes so much has happened.

[00:18:18] Speaker 04:
But the original concept in Hudson about basic consideration of fairness

[00:18:23] Speaker 04:
was in a situation where the actual percentage of reduction was given in Hudson, and the unfairness was that it wasn't accompanied by the additional bundle of rights, the additional bundle to know what chargeable expenses are and what procedures would be available for an employee who wanted to challenge those.

[00:18:41] Speaker 04:
And we're now at a point where the complaint in this case alleged that the specific percentage alone was the basic unfairness.

[00:18:49] Speaker 04:
And yet that was rejected way back in Hudson, that that alone could address the unfairness.

[00:18:55] Speaker 04:
The board's entry into this field, which happened after Hudson, which happened after Abrams with the issuance of California's thought, tried to suggest that this bundle was appropriately given at a stage two.

[00:19:09] Speaker 04:
after the employee has elected to not be a member and to not pay full membership fees.

[00:19:17] Speaker 04:
And this complaint has asked that that one aspect, the specific percentage, be moved up to stage one.

[00:19:25] Speaker 04:
And the board, I believe, has offered a very recent view of why its understanding of this area of the law should be given deference, but it recognizes that it is up against precedent of this circle.

[00:19:38] Speaker 04:
That's why we submitted a petition for hearing them initially.

[00:19:44] Speaker 04:
Thank you.

[00:19:44] Speaker 04:
Anything else?

[00:19:45] Speaker 04:
No.

[00:19:45] Speaker 03:
Okay.

[00:19:48] Speaker 03:
Mr. Kovas?

[00:19:53] Speaker 01:
Jim Kappas for Food and Commercial Workers Local 700.

[00:19:58] Speaker 01:
The first point I'd like to make is that a charging party in an unfair labor practice case is most certainly not a class representative.

[00:20:05] Speaker 01:
The complaint is brought by the board's general counsel and litigated by the board general counsel who controls the theory of the complaint.

[00:20:12] Speaker 01:
It's particularly so in this case for the reasons Mr. Engelhardt said, because this case

[00:20:17] Speaker 01:
was brought with regard to what happened to an individual employee.

[00:20:21] Speaker 01:
The charge was filed on behalf of an individual employee.

[00:20:25] Speaker 01:
And contrary to what Ms.

[00:20:27] Speaker 01:
Sam's attorney says, in cases like that, the board must not give relief beyond the individual charging parties.

[00:20:34] Speaker 01:
The relevant cases are cited in the first Penrod opinion of the board, 327 NORB at 955, note 31.

[00:20:43] Speaker 01:
So Ms.

[00:20:44] Speaker 01:
Sands does not stand in the role of the class representative at all.

[00:20:48] Speaker 01:
The sole argument made in the briefs was that she's entitled to keep this case alive to seek notice, but she's certainly not a person who's aggrieved by the lack of notice, and that's the statutory requirement.

[00:21:00] Speaker 01:
the person who wants to petition for review has to be aggrieved by the order.

[00:21:04] Speaker 01:
The Montague case pointedly did not reach the issue of whether the charging parties in that case were aggrieved, and I'd say that Ms.

[00:21:13] Speaker 01:
Sands is certainly not aggrieved by the lack of a notice in her former workplace.

[00:21:19] Speaker 01:
As to the supposed back pay liability, this case is nothing like Campbell E. Wallen because the union did not make a settlement offer.

[00:21:28] Speaker 01:
Ms.

[00:21:28] Speaker 01:
Sands was free to take the money.

[00:21:30] Speaker 01:
It was given to her without any conditions at all.

[00:21:35] Speaker 01:
She's still free to take the money, so there's no dispute about her being a

[00:21:38] Speaker 07:
How's that not like Campbell, you all?

[00:21:40] Speaker 01:
That was a settlement offer.

[00:21:41] Speaker 01:
There was no tender.

[00:21:43] Speaker 01:
There was no tender of money at all in that case.

[00:21:46] Speaker 01:
The defendant made a Rule 68 settlement offer and attempted to moot a class action.

[00:21:53] Speaker 01:
First of all, this isn't a class action.

[00:21:55] Speaker 01:
Secondly, we didn't make a settlement offer.

[00:21:58] Speaker 01:
There was no conditions on her cashing the check.

[00:22:03] Speaker 01:
We simply said, this is not worth $300.

[00:22:05] Speaker 01:
Here's a check.

[00:22:07] Speaker 01:
We hope that satisfies you, but that's not a settlement offer Settlement offer is if you take this will settle the case this was given unconditionally It was the money was just handed to her.

[00:22:19] Speaker 01:
That's not a settlement offer by any

[00:22:24] Speaker 01:
by any stretch of the imagination.

[00:22:26] Speaker 01:
Certainly not a Rule 68.

[00:22:27] Speaker 06:
So the understanding was you take the check and we will still see you in court.

[00:22:30] Speaker 01:
We'll keep going.

[00:22:31] Speaker 01:
If you want to argue about it, we're not saying that you're waiving anything by taking the check.

[00:22:35] Speaker 01:
We're just saying here is the money that you paid us.

[00:22:38] Speaker 01:
We're returning it.

[00:22:39] Speaker 07:
But it's the money that a court could order or the board could have ordered to be paid.

[00:22:45] Speaker 01:
Well, actually not, as we point out in our footnote, because there's no allegation in this case that Ms.

[00:22:51] Speaker 01:
Sand was anything but a full voluntary member for the entire time.

[00:22:54] Speaker 07:
Put that aside.

[00:22:55] Speaker 07:
If you were not correct on that, the board could order the payment.

[00:22:59] Speaker 01:
Yes, except that the Supreme Court said that they couldn't do Local 60.

[00:23:03] Speaker 01:
But yes, I mean, right, were it not for Local 60 and were the law different.

[00:23:13] Speaker 01:
But that's not the case.

[00:23:14] Speaker 01:
She has the check.

[00:23:16] Speaker 01:
She can probably still cash it if she can't or write another one.

[00:23:19] Speaker 01:
There's just no dispute about the money.

[00:23:22] Speaker 01:
Do you have a view about the waiver issue?

[00:23:24] Speaker 01:
Well, the brief argues only that notice is what keeps the case alive.

[00:23:29] Speaker 01:
So if, as the prior arguments indicate, you're not going to entertain arguments that weren't in the brief, it certainly was waived here.

[00:23:38] Speaker 03:
Do you have a view about vacatur, if we think it's moving?

[00:23:41] Speaker 01:
Yeah, it seems to me, I mean, you know, in practical terms, we don't really care, but it seems to not make sense legally, because what the court's reviewing is the order of the board, and the order of the board here dismissed the complaint.

[00:23:56] Speaker 01:
And so if you vacate the order, the complaint is still dismissed.

[00:24:01] Speaker 01:
If it weren't, that would just be tantamount to a remand.

[00:24:04] Speaker 01:
So I don't understand how vacating the order room makes any sense.

[00:24:09] Speaker 01:
And as you point out, the precedent is still there.

[00:24:12] Speaker 07:
And the general counsel... But you don't object to vacator.

[00:24:15] Speaker 01:
I don't object.

[00:24:16] Speaker 01:
If the court thinks it makes sense, that's fine with us.

[00:24:21] Speaker 01:
You know, I had hoped to discuss Abrams and Penrod with Judge Tato.

[00:24:25] Speaker 01:
We both have a long history with both those cases, but it sounds like that's not going to be for today.

[00:24:31] Speaker 03:
I think so.

[00:24:32] Speaker 01:
No more questions?

[00:24:33] Speaker 03:
Well, what's my colleagues would like to discuss it with you?

[00:24:35] Speaker 01:
No.

[00:24:36] Speaker 03:
Neither?

[00:24:36] Speaker 03:
Okay.

[00:24:37] Speaker 03:
I'm sorry, Mr. Copas.

[00:24:38] Speaker 03:
We'll try again another time.

[00:24:42] Speaker 03:
Thank you.

[00:24:43] Speaker 03:
Did council have any time left?

[00:24:46] Speaker 03:
You can take two minutes if you'd like it.

[00:24:48] Speaker 02:
Real quick, I just wanted to make a couple points.

[00:24:50] Speaker 02:
Sure.

[00:24:51] Speaker 02:
On the issue of the practical effect, the practical effect of vacator is that the similarly situated employees at Kroger who did not receive a proper back notice will have no opportunity to retroactively object.

[00:25:02] Speaker 02:
And I wanted to point out the complaint is brought on behalf of not only Laura Sands,

[00:25:07] Speaker 06:
I didn't understand that.

[00:25:11] Speaker 06:
If we vacate the decision below, that will disadvantage Kroger employees who might want to challenge?

[00:25:18] Speaker 02:
Who might want to challenge that they didn't receive a proper back notice and receive a refund.

[00:25:25] Speaker 02:
And that's why Stan Stans is similarly situated.

[00:25:27] Speaker 05:
So I want to see you have to agree with your third party state.

[00:25:32] Speaker 02:
Right, right, right.

[00:25:33] Speaker 02:
And so, but I want to point out that Joint Appendix 40 paragraph seven of the complaint, it says by the conducts described above respondent has been restraining and coursing not just lower sands, but they say employees.

[00:25:47] Speaker 02:
not just Laura Sands, but all employees in the exercise of the rights guaranteed under the act.

[00:25:52] Speaker 02:
And the board, the general counsel before the ALJ specifically requested that they provide all bargaining unit employees with the full amount of union dues and the percentage of reduction in dues objecting on members received.

[00:26:07] Speaker 02:
So the board is the one who made this a similarly situated case.

[00:26:11] Speaker 02:
And they're coming up here at the last minute

[00:26:13] Speaker 02:
And in a case where they didn't really think it was moot, you don't usually petition for on-bonk review in a case that you think is dead.

[00:26:21] Speaker 02:
They're coming up here and now saying the exact opposite.

[00:26:25] Speaker 02:
Now, I just want to point out one more thing that the board said.

[00:26:27] Speaker 02:
They said, she doesn't have a personal interest in mootness because those cases where a notice may be mailed.

[00:26:34] Speaker 02:
But the board has a broad remedy and can have the notice mailed here.

[00:26:38] Speaker 02:
So contrary to what has been said, Laura's hands may still see it.

[00:26:41] Speaker 02:
And Jay Pacini's hands for that is that the board has large remedial powers to effectuate an electronic remedy.

[00:26:52] Speaker 02:
One more thing, I'm over my time.

[00:26:53] Speaker 02:
Go ahead, you can finish your sentence.

[00:26:57] Speaker 02:
Once we received the check, we sent it directly to Laura Sands.

[00:27:02] Speaker 02:
I guess if there's any question about it, she's had it since we've received it.

[00:27:06] Speaker 02:
So thank you.

[00:27:09] Speaker 03:
Thank you very much.

[00:27:09] Speaker 03:
The case is submitted.