[00:00:01] Speaker 00: Case number 14-1055 at L, NBC Universal Media LLC Petitioner versus National Labor Relations Board. [00:00:08] Speaker 00: Mr. Salvatore for the petitioner, Mr. Salter for the respondent. [00:00:55] Speaker 05: Good morning. [00:00:57] Speaker 05: May it please the Court, my name is Paul Salvatore from Prospero Rose for Petitioner NBC. [00:01:02] Speaker 05: With me today are my colleagues Mark Harris and Bernie Plumb. [00:01:07] Speaker 05: The National Labor Relations Board placement of the content producers into a single mythical bargaining unit must be vacated. [00:01:16] Speaker 05: The board's ruling deprives NBC of the benefit of its 60-plus-year bargain with NABIT that there's 12 bargaining units across the country, not a nationwide single unit. [00:01:30] Speaker 05: Its result-oriented rush to establish a single unit, in doing that, the board advocated its responsibility to follow the law and should be reversed for two principal reasons. [00:01:43] Speaker 05: First, the collective bargaining agreement's language and architecture are clear on its face that there are multiple units here. [00:01:53] Speaker 05: This court is not a rubber stamp and reads the collective bargaining agreement de novo and owes no deference to the board in that regard. [00:02:03] Speaker 05: Second, 60 years ago, the board construed the very same operative provisions of this collective bargaining agreement and found that it created multiple units. [00:02:16] Speaker 04: Well, the agreement has changed. [00:02:18] Speaker 04: So it's not exactly the same agreement. [00:02:21] Speaker 05: Your Honor, the agreement changed. [00:02:23] Speaker 04: And history, as the board has said on many occasions, can create a nationwide unit if that's where the parties have negotiated. [00:02:33] Speaker 04: But in any event, we're talking about the 2006 agreement forward. [00:02:37] Speaker 04: So whatever happened 60 years ago is irrelevant. [00:02:40] Speaker 05: Well, I don't agree with you, Your Honor. [00:02:42] Speaker 05: There are no changed circumstances here. [00:02:44] Speaker 05: Well, that's the issue. [00:02:45] Speaker 05: The record is devoid of any changed circumstances, and let me address it. [00:02:48] Speaker 04: Well, let me give you my question so you know what you want to address. [00:02:52] Speaker 04: The collective bargaining agreement is not the same as it was before, because in 2006 there were changes. [00:02:58] Speaker 04: And I don't know how you, I mean, it's an interesting case. [00:03:01] Speaker 04: I don't know how you distinguish the situation from, let me ask you a question first. [00:03:07] Speaker 04: There are no separate [00:03:10] Speaker 04: signed agreements for the articles, right? [00:03:14] Speaker 04: That's correct. [00:03:15] Speaker 04: The articles are simply part of the master agreement, right? [00:03:18] Speaker 05: Well, they're actually called agreements. [00:03:20] Speaker 05: They're not articles. [00:03:21] Speaker 05: And they're separate agreements. [00:03:23] Speaker 04: They're not signed. [00:03:24] Speaker 05: They're not signed, but they each [00:03:26] Speaker 05: are called an agreement, all 12 of them, and they each have a scope of unit clause. [00:03:31] Speaker 04: Right, but the scope of unit clause is given force only because the master agreement says that's the way we're going to set up the master agreement. [00:03:39] Speaker 04: And let me just tell you what I'm looking at so you know what you want to respond to it. [00:03:43] Speaker 04: The master agreement is the only document we're looking at here. [00:03:46] Speaker 04: There are no separate [00:03:48] Speaker 04: signed agreements. [00:03:49] Speaker 04: The only signed agreement is the master agreement. [00:03:52] Speaker 04: The only union representative, therefore, is the international. [00:03:57] Speaker 04: And the master agreement, as is often the case, General Motors being a prime example that the board had, exactly the same kind of situation which referred to scope clauses, and the board said, so what? [00:04:09] Speaker 04: that there can be scope clauses with respect to the various local areas. [00:04:14] Speaker 04: It's still a master agreement covering all of these units, and units was the word used in General Motors. [00:04:22] Speaker 05: This is different than General Motors, Your Honor, and let me tell you why. [00:04:26] Speaker 05: When you look at this agreement, you see that there are, and you look at the table of contents, which is on page J207 of the record, going from J207 to [00:04:38] Speaker 05: to J211, you see the architecture of this agreement. [00:04:42] Speaker 05: There are 12 separate agreements. [00:04:44] Speaker 05: Each has a separate scope of unit clause. [00:04:47] Speaker 05: This is the way it has been since the board ruled in 1955. [00:04:51] Speaker 05: And the board can't just backhand its own precedent just because it's decades old. [00:05:00] Speaker 05: If you look at that case, [00:05:02] Speaker 05: There are no changed circumstances here. [00:05:04] Speaker 05: The record is devoid of any changed circumstances. [00:05:07] Speaker 04: The articles are negotiated. [00:05:08] Speaker 05: They're negotiated in a centralized bargaining that goes on, but that has gone on since 1955. [00:05:21] Speaker 05: The international and representatives of the locals. [00:05:23] Speaker 04: Right, but the international sets the framework. [00:05:25] Speaker 04: There can't be any articles that can be created until that master agreement has been negotiated by the international, right? [00:05:33] Speaker 05: The negotiations as I understand it from the record [00:05:37] Speaker 05: occurred together. [00:05:39] Speaker 04: No, no, let me be very clear what I'm asking you because I did read the record carefully. [00:05:43] Speaker 04: My understanding is none of these locals can create a binding article until that master has been signed by the International Union. [00:05:54] Speaker 04: They don't have any independent force. [00:05:56] Speaker 04: They're all part of the master agreement. [00:05:58] Speaker 05: They bargain together. [00:06:00] Speaker 04: Right, but what I'm trying to ask you is, and if I have the history wrong, point me to something, I'll go look at it. [00:06:05] Speaker 04: OK. [00:06:06] Speaker 04: A local can come in during those central negotiations and say, you guys do whatever you want to do. [00:06:11] Speaker 04: We're going to negotiate our article. [00:06:13] Speaker 04: It's a separate agreement, and we're done when we're done. [00:06:16] Speaker 04: They have to wait until the master agreement is done, the international union, and then all of these other arrangements that are made part of the master agreement are then negotiated. [00:06:26] Speaker 05: They're negotiated together. [00:06:28] Speaker 05: And as you know, two unions can serve as joint bargaining representatives. [00:06:32] Speaker 05: But this is how it was done since at least 1955. [00:06:35] Speaker 05: If you look at the board's decision in 1955, the Nabat lawyer testified. [00:06:42] Speaker 05: And he testified about the bargaining process. [00:06:46] Speaker 05: And if you look at that testimony, which is in the board decision at page three, [00:06:53] Speaker 05: It's exactly the same centralized process that existed then that exists now. [00:07:00] Speaker 05: The way the union bargains is outside the control of NBC. [00:07:06] Speaker 05: We can't control how the union structures its bargaining. [00:07:11] Speaker 05: And the board admitted at page 32 of its brief, when it's talking about changed circumstances, and there are none here. [00:07:17] Speaker 05: The record's devoid of it. [00:07:18] Speaker 05: And they admit that the bargaining process is decades old. [00:07:22] Speaker 05: In fact, it goes back to 1955. [00:07:25] Speaker 05: And there, they found multiple units. [00:07:27] Speaker 05: And if they found multiple units there, based on that bargaining process, there should be multiple units here. [00:07:32] Speaker 05: The ratification process was the other thing they cited. [00:07:35] Speaker 05: And they admitted on page 32 of their brief that it's longstanding. [00:07:41] Speaker 05: NBC doesn't control the ratification process. [00:07:44] Speaker 05: As you know, that's a matter of union democracy and union bureaucracy. [00:07:47] Speaker 05: And that the way NBC finds out about whether the agreement is ratified is they get a phone call. [00:07:54] Speaker 05: We don't know the process the union goes through, and we shouldn't be held to that. [00:07:58] Speaker 05: In any event, as you point out, it was done unit by unit. [00:08:02] Speaker 05: And these general articles on page, they're listed on page 207 of the record, are terms and conditions that cover kind of an umbrella that are general terms that cover all of the different units. [00:08:19] Speaker 05: The specific agreements for each unit [00:08:23] Speaker 05: And if the court could take a look with me at page J208 of the record, you'll see in the table of contents, which really shows the architecture between J207 and J211 of the agreement, [00:08:39] Speaker 05: that each of these separate units stands as a separate agreement with a separate recognition clause, which is what the scope of the unit is. [00:08:49] Speaker 05: So there are 12 separate recognition clauses here. [00:08:52] Speaker 04: The problem is you have, at least in my view, the problem there is, and it is similar to General Mote, is the separate statement as to who is within each local component [00:09:04] Speaker 04: is given credence only because the master agreement says so. [00:09:07] Speaker 04: The master agreement says that's the way this contract is going to be written. [00:09:12] Speaker 04: And so when you want to figure out scope, what we've decided to do is with respect to each of the local pieces of the overall agreement, you're going to find them there. [00:09:22] Speaker 04: And we'll describe it at those places. [00:09:24] Speaker 04: That's the other way to look at it. [00:09:25] Speaker 04: So I don't know. [00:09:26] Speaker 04: You don't win anything by saying to, because there's no signatories to those local agreements, what you're calling agreements. [00:09:33] Speaker 04: There's no signatories there. [00:09:35] Speaker 04: There's nothing to indicate that the local union has an enforceable right with respect to anything there, as opposed to the international. [00:09:42] Speaker 05: Your right says no signatories. [00:09:44] Speaker 05: However, if you look at the page JA-215, the preamble of the agreement, and you'll see, starting reading right there, that the [00:09:59] Speaker 05: Agreement is very clear and not ambiguous in any way whatsoever that it talks about, it calls it agreements, it talks about in the general articles and the individual articles a description of each bargaining union. [00:10:16] Speaker 04: JA15 calls them articles. [00:10:18] Speaker 04: I'm sorry? [00:10:19] Speaker 04: They're called articles in the master agreement. [00:10:21] Speaker 04: JA15, they're called articles. [00:10:25] Speaker 05: Well, in the table of contents, they're called agreements. [00:10:27] Speaker 04: Yeah, well, but then you look at their articles, and an agreement normally has signatories. [00:10:31] Speaker 04: It does, but this is the- And the only signatories here are to the master agreement. [00:10:36] Speaker 05: Your Honor, if you look further in the recognition clause, you see that it says the applicable scope of unit, all caps clause, that acknowledges that there are more than one unit here. [00:10:49] Speaker 05: This is the history of this collective bargaining relationship. [00:10:53] Speaker 04: If you go back... You're taking the word unit as a term of order as if it has legal significance. [00:10:56] Speaker 04: It may simply be a descriptive word here, and that's what it appears to be. [00:11:00] Speaker 05: In 1955, that was good enough for the board, and now in 2011, it was not good enough for the board. [00:11:08] Speaker 01: In the NBC case... Were there separate signatories in 1955? [00:11:13] Speaker 05: No. [00:11:14] Speaker 05: This is the exact same structure, Your Honor. [00:11:17] Speaker 05: The board said in 1955 that it made a careful study of the master agreement, quote unquote, and then goes on to say on page three and four of its opinion that the terms of the master agreement clearly preserve the separate identity of the various groups bargained for and goes on to say we know particularly in this connection the language of the master agreement. [00:11:41] Speaker 05: Same parties. [00:11:43] Speaker 05: same preamble, same recognition clause, which now the acting regional director somehow found ambiguous, but the board in 1955 didn't have any problem with, same unit references, same centralized negotiating history. [00:11:59] Speaker 05: There's nothing changed here. [00:12:01] Speaker 01: I'm sorry, I just wanted to ask one other thing, because I wasn't clear on this. [00:12:05] Speaker 01: Is your position that [00:12:08] Speaker 01: Nabat, the national union, represents each of the separate units as you refer to them, or that they are represented by locals. [00:12:20] Speaker 05: It's done together. [00:12:22] Speaker 05: This is coordinated bargaining. [00:12:24] Speaker 05: And that's a lawful and permissible way that bargaining occurs under the National Labor Relations Act. [00:12:31] Speaker 05: You can have two unions that serve as joint bargaining representatives. [00:12:36] Speaker 01: I understand. [00:12:36] Speaker 01: So is your position that, for example, Article M, the News Writers Agreement in Los Angeles, which has its own scope of unit, all your arguments, is your position that [00:12:49] Speaker 01: NABIT represents them. [00:12:51] Speaker 01: In coordination, like it normally has, local unions do the kind of local things. [00:12:55] Speaker 01: It teams up with them, but at the end of the day, NABIT. [00:12:59] Speaker 01: represents them or that they are only represented by the local union? [00:13:03] Speaker 05: NABIT represents them. [00:13:04] Speaker 01: Each of these individual units. [00:13:06] Speaker 05: The NABIT local represents them, and the NABIT local is affiliated with the International NABIT, which is, I believe, based in Washington. [00:13:14] Speaker 05: So that's the structure of when we do bargaining, we have to go to each local. [00:13:21] Speaker 05: That's how NBC negotiates. [00:13:24] Speaker 05: They talk to each local. [00:13:25] Speaker 05: When they want to do something under this agreement, they want to move the Jimmy Fallon show from Los Angeles to New York, they have to conduct negotiations with the LA local. [00:13:35] Speaker 05: Then they have to come to New York and conduct negotiations with the New York local. [00:13:39] Speaker 05: That's the way this structure has been. [00:13:41] Speaker 05: It's been this way since at least 1955, and the board is totally disingenuous in the way it has presented the cases here. [00:13:52] Speaker 01: That's another thing. [00:13:54] Speaker 01: This all arose from a request for information that the company didn't comply with. [00:14:00] Speaker 01: I thought that was the genesis of the unfair labor practice. [00:14:03] Speaker 01: There was a request for information from the union, NBC didn't comply, and then there was the unfair labor practice and that's what led to this issue. [00:14:11] Speaker 05: NBC committed a technical unfair labor practice here which enabled us to take this appeal. [00:14:15] Speaker 01: And the technical one was a failure to provide information? [00:14:17] Speaker 05: Affiliate of Provider Information, Affiliate of Bargain, the unit clarification decision from the acting regional director had already come down, and we were disagreeing with that. [00:14:27] Speaker 05: And so in order to get to this court, you have to commit a technical unfair labor sentence. [00:14:31] Speaker 01: I understand that. [00:14:33] Speaker 01: That was 2009, and it's 2016. [00:14:34] Speaker 01: Is that even still a live dispute? [00:14:37] Speaker 01: I assume you've got subsequent agreements. [00:14:41] Speaker 01: Do they preserve this issue, or is there clarification on the subsequent agreements? [00:14:45] Speaker 05: That's an important point. [00:14:47] Speaker 05: There is seven years that have gone by here. [00:14:50] Speaker 05: And in light of that, the number of content producers has changed. [00:14:56] Speaker 05: The way content producers are used has changed. [00:15:02] Speaker 01: Is the relevant contract language still all the same? [00:15:06] Speaker 05: The relevant contract language here is the same since going back before 1955. [00:15:10] Speaker 05: The preamble is the same, the recognition clause is the same, the unit structure of multiple units is the same. [00:15:20] Speaker 05: This is a situation where that architecture has continued and the parties have relied on it in terms of their relationship. [00:15:31] Speaker 03: So what about Article 6, which talks about the bargaining unit? [00:15:41] Speaker 05: Does that? [00:15:42] Speaker 05: I'm sorry, seniority, layoffs, and rehires? [00:15:44] Speaker 03: Article 6 refers to the bargaining unit. [00:15:49] Speaker 05: It's the transfer of work. [00:15:51] Speaker 05: Yeah, I'm sorry, the transfer of work provision. [00:15:53] Speaker 05: Yes, the transfer of work provision, Your Honor, is one of the board's three woefully insufficient excuses for finding ambiguity. [00:16:03] Speaker 03: And what it says is... Why is it woefully... I guess my question is why is it woefully insufficient? [00:16:08] Speaker 05: Well, Your Honor, it's because they seize on the fact there's no letter S after the word unit in this clause, and that clause allows... Does it get significant? [00:16:18] Speaker 05: No, it's not significant. [00:16:20] Speaker 05: That clause, read in context, is part of the general section. [00:16:24] Speaker 05: So the fact there's no S there makes sense, because you're talking about taking work from one of the 12 individual units [00:16:34] Speaker 05: And so you have to read the clause in that way. [00:16:39] Speaker 04: In any event... Is there any work or function covered by disagreement, not by what you claim are the individual agreements? [00:16:48] Speaker 04: The transfer talks about this agreement, the whole. [00:16:52] Speaker 04: And then, as Judge Taylor says, it doesn't say. [00:16:55] Speaker 04: It's funny, when it's to your advantage, adding the S is a big deal. [00:16:59] Speaker 04: When the S isn't there, you minimize it. [00:17:01] Speaker 04: Well, and then it goes on over and over again. [00:17:03] Speaker 04: It says bargaining unit, bargaining unit, bargaining unit, bargaining unit. [00:17:07] Speaker 04: in that provision. [00:17:08] Speaker 05: In one provision, Your Honor. [00:17:10] Speaker 05: And we pointed out in our brief five pages of provisions. [00:17:13] Speaker 04: Wait a minute. [00:17:14] Speaker 04: What Judge Tatel is trying to ask you is, is this creating a situation where the contract is ambiguous? [00:17:21] Speaker 04: And this clause came in later, well after 1955. [00:17:24] Speaker 05: And we don't believe that that clause, read correctly, creates any ambiguity. [00:17:29] Speaker 05: And regardless, a missing S in one clause in a 300-page, 70-year-old collective bargaining agreement, not written by lawyers, doesn't make it ambiguous. [00:17:42] Speaker 05: Even when you go, if you find it ambiguous, which you shouldn't, as we've talked about, when you look at what the board says of the changed circumstances from the extrinsic evidence, they're not changed. [00:17:55] Speaker 05: There's no change in the bargaining process. [00:17:57] Speaker 05: There's no change in the ratification process, which is not in NBC's control as it is. [00:18:05] Speaker 05: This agreement has been for years. [00:18:08] Speaker 04: Were there individual certifications in the old days? [00:18:11] Speaker 05: Several. [00:18:12] Speaker 05: There are several, and they're in the record. [00:18:14] Speaker 05: There were two different units that the board issued individual certifications on. [00:18:18] Speaker 05: But as you know, the parties can agree to what the unit scope is, and that's what happened here. [00:18:23] Speaker 05: They were organized after World War II or around World War II, and as it rolled forward, more and more units were put in place. [00:18:31] Speaker 05: You know that the board [00:18:33] Speaker 04: to create the single whole. [00:18:36] Speaker 05: No, there's a presumption that local and multiple units that are geographically diverse, that have different types of jobs, are multiple units. [00:18:47] Speaker 05: They're not a single unit. [00:18:49] Speaker 05: This is not the CBS situation. [00:18:51] Speaker 05: And in fact, in CBS, which the board cites and relies on heavily one of its key cases, if you read footnote nine, you'll see that the board there in 1974 distinguished [00:19:03] Speaker 05: CBS as a single nationwide unit, because that's the network that does have a single nationwide unit, as opposed to ABC and NBC. [00:19:11] Speaker 05: And the NBC and the ABC cases from 1955 are in the footnote, showing that it's distinguished. [00:19:21] Speaker 05: The substantial evidence must account for whatever fairly detracts from its weight. [00:19:25] Speaker 03: Yeah, thanks. [00:19:26] Speaker 03: We'll hear from the board, OK? [00:19:28] Speaker 05: Thank you, Your Honor. [00:19:42] Speaker 02: Good morning, Your Honors. [00:19:43] Speaker 02: Greg Soterre for the National Labor Relations Board. [00:19:47] Speaker 02: The board's order does not alter the party's bargaining relationship in this case. [00:19:52] Speaker 02: What the board simply did is to recognize that over the decades of bargaining relationship that Mr. Soterre spoke of, the parties have evolved into treating all union-represented employees as part of a single unit. [00:20:06] Speaker 02: And the board did this by applying its own well-established law, first looking at the terms of the contract to determine whether they were clearly and unambiguously indicating that there was one or multiple units. [00:20:23] Speaker 04: So you agree with the other side that it started out as individual units, right? [00:20:30] Speaker 04: That is probably the case. [00:20:34] Speaker 04: Well, if they had individual certifications, it must have been the case. [00:20:37] Speaker 02: Well, there were a couple of individual certifications. [00:20:39] Speaker 02: Others were probably recognized. [00:20:41] Speaker 04: Right, and recognition, but they started out as individual units. [00:20:44] Speaker 02: Yes, and that's usually what happens. [00:20:46] Speaker 02: These units get aggregated together as the union recognizes them. [00:20:49] Speaker 04: Or not. [00:20:50] Speaker 04: That's what we're trying to figure out. [00:20:51] Speaker 02: Right, right. [00:20:52] Speaker 04: So what happened that dramatically changed what the history was? [00:20:58] Speaker 02: Well, Your Honor... Where's the evidence of it? [00:21:02] Speaker 02: The issue isn't a change in circumstance. [00:21:04] Speaker 02: The issue is whether the contract itself... I understand. [00:21:09] Speaker 04: So the appointments to something in the contract, they've pointed us to many things, which refer to individual units. [00:21:15] Speaker ?: Okay. [00:21:15] Speaker 04: So what arguments do you have? [00:21:18] Speaker 02: Well, the first and most important argument is the Transfer Award Clause, and the fact that it refers to this agreement and this bargaining agreement. [00:21:29] Speaker 03: What about the... I mean, you found the one place in there that it says this agreement. [00:21:35] Speaker 03: Throughout the whole rest of the agreement, [00:21:38] Speaker 03: Look at page 15 to 16 of the blue brief. [00:21:42] Speaker 03: They go on for pages listing all the places where it refers to multiple units. [00:21:47] Speaker 02: That's right. [00:21:48] Speaker 03: You found the one example and what's your response to Council's explanation for why there was no S there? [00:21:56] Speaker 02: Well, let me just answer your first issue with the fact that the units go on for pages and pages in their brief. [00:22:03] Speaker 02: Ambiguity is not determined by counting how many times the word unit appears with or without an S. What you have to do is... This may not be dispositive, but it's certainly powerful evidence. [00:22:14] Speaker 02: Sure, but you have to look ultimately at the whole contract and see if it creates an ambiguity. [00:22:20] Speaker 02: Now in this case, where's the ambiguity? [00:22:22] Speaker 02: And by the way, we also pointed out the term disagreement in the singulars scattered all over the place in this contract. [00:22:29] Speaker 02: And in fact, in the preamble, [00:22:32] Speaker 02: It says, this agreement's in the plural, and then there's a more recent, the last sentence was just clearly more recent because it deals with saying that when we use the word his, it also means her. [00:22:42] Speaker 02: Then the term appears in the singular, this agreement. [00:22:45] Speaker 02: Now turning to your second question. [00:22:48] Speaker 02: Why is it important? [00:22:50] Speaker 02: This agreement is all about NBC's ability to transfer work from some employees to other employees. [00:23:01] Speaker 02: NBC is a nationwide company. [00:23:03] Speaker 02: They create a nationwide product. [00:23:07] Speaker 02: And why it matters is that that clause creates two universes, one with all employees covered by the union, one with all the other employees who aren't. [00:23:21] Speaker 02: And it says you can't transfer work that is bargaining unit work to outside of the units and give it to non-covered employees. [00:23:36] Speaker 02: this clause were not read, were to apply, as Mr. Salazar said, to each individual unit, then it would conflict with side letter 50, which specifically allows NBC to transfer work from news writers [00:23:56] Speaker 02: technical employees such as cameramen and so on and so forth, when they have to produce, when in the course of their primary job function, it can be useful for them to do those other functions as well. [00:24:11] Speaker 02: And so if we were to read the transfer of work clause as argued by NBC, then that would restrict NBC's ability to have that flexibility and to allow the various employees to [00:24:27] Speaker 02: Do all of the job functions that are necessary for them to produce NVC's content? [00:24:32] Speaker 03: And what are the meanings of all of the individual articles, each of which talk about the, quote, scope of the unit? [00:24:39] Speaker 02: Well, Your Honor, we don't deny, I'm not here to represent, Your Honor, that the bargaining agreement clearly and unambiguously establishes a single unit. [00:24:50] Speaker 03: Yeah, I got you. [00:24:51] Speaker 03: OK. [00:24:51] Speaker 03: You're right. [00:24:53] Speaker 03: Your position is Article 6 renders it ambiguous, right? [00:24:57] Speaker 03: Well, Article 6, the fact that, as I said, these are the- And then what would, if you're right, what would be the meaning of side letters 50 and 51? [00:25:10] Speaker 02: Well, as I said, if side letter 50 – side letter 50 goes along with Article 6 in the sense that it allows transfer of work among employees within the different units. [00:25:24] Speaker 04: But that's not what the transfer of work provision is addressing. [00:25:26] Speaker 04: No, no. [00:25:27] Speaker 04: So what? [00:25:29] Speaker 04: What I meant to say – You say they – that they're integrated and we should look at them as part of a – kind of a single notion. [00:25:35] Speaker 04: They're not part of a single notion. [00:25:36] Speaker 04: They're addressing entirely different things. [00:25:39] Speaker 04: One is [00:25:40] Speaker 04: Transfer of work is bargaining unit employees versus non-unit employees. [00:25:44] Speaker 04: 50-51 are talking about people who are clearly in some bargaining unit, either the whole or individuals, and whether they can move from one location to another. [00:25:55] Speaker 02: That's right. [00:25:56] Speaker 02: And what 50-51 do is that they help create this single unit, this single bargaining unit, by facilitating the ability of employees to [00:26:07] Speaker 02: do work that other units also perform in the context of their own job functions? [00:26:15] Speaker 03: Look at section, the third provision of 50. [00:26:19] Speaker 03: It's referring to other than his or her own, unless the work is combined with, I mean, it's talking about individual units in there, not one unit. [00:26:38] Speaker 02: Yes, it's talking about individual units in the sense of, even if you have, you know, even in the context of a single bargaining unit, Your Honor, you know, let's assume that we're right and that you really have a single bargaining unit. [00:26:52] Speaker 02: You still have employees with different job functions. [00:26:56] Speaker 02: who do different things. [00:26:57] Speaker 02: And you still have to police how those employees are going to do their work when their job functions overlap. [00:27:05] Speaker 02: And that's what these provisions do. [00:27:07] Speaker 04: Your argument, as I understand it, is that Article 6, side bars, side letters 50 and 51, all came in 2006. [00:27:17] Speaker 04: Is that right? [00:27:19] Speaker 02: No, I don't believe so. [00:27:20] Speaker 02: I don't think the record is clear as to when they appeared. [00:27:24] Speaker 04: So you don't know when the transfer of work provision came into effect? [00:27:27] Speaker 02: No. [00:27:27] Speaker 01: Was it there in 1955? [00:27:28] Speaker 01: No. [00:27:28] Speaker 02: If it was, it wasn't referenced in the board's order. [00:27:32] Speaker 01: But it might have been there in 1955? [00:27:33] Speaker 01: It could have been. [00:27:34] Speaker 02: The 1955 agreement isn't part of the record item. [00:27:36] Speaker 02: Well, you've gotten better than that. [00:27:39] Speaker 04: The transfer of work provision, I thought, I've got to go back and look then. [00:27:43] Speaker 04: I thought your argument was that this is [00:27:45] Speaker 04: a recent addition and evidence of changed circumstances. [00:27:49] Speaker 02: There is no evidence that the transfer work provision existed in 1955. [00:27:54] Speaker 02: I don't, but there is no evidence as to when it was added in, unless the Vice-Chair can correct me. [00:28:01] Speaker 02: I'm not aware of it. [00:28:02] Speaker 01: One thing that I'm concerned about is in 1955, at least, the Board thought [00:28:07] Speaker 01: attached particular weight. [00:28:09] Speaker 01: We note particularly the language of the intent and purpose clause. [00:28:13] Speaker 01: And I think you would agree that that is identical. [00:28:16] Speaker 02: Yes, except for that last little sentence that I pointed out that refers to disagreement. [00:28:22] Speaker 01: That's not going so much to the intent. [00:28:24] Speaker 01: That's a rule of construction for the agreement. [00:28:25] Speaker 01: It's not going to the intent and purpose of the parties, that last sentence. [00:28:30] Speaker 01: That's just a height. [00:28:30] Speaker 01: Oh, yeah, sure. [00:28:31] Speaker 01: No, I understand. [00:28:32] Speaker 01: Right, so the intent and purpose of the parties [00:28:35] Speaker 01: Is that no longer due the particular weight? [00:28:39] Speaker 01: Has the board explained why that's not particularly persuasive now when it was then? [00:28:43] Speaker 02: Well, you have to look at the contract as a whole, and if that... Having the contract as a whole helps you a lot because there's an awful lot more units, plural. [00:28:54] Speaker 01: That's true. [00:28:54] Speaker 01: And references than there are in agreements, plural. [00:28:58] Speaker 02: I understand, but again, [00:29:01] Speaker 02: The board did not find that this contract unambiguously supports a single unit. [00:29:07] Speaker 02: All the board found is that it does not unambiguously support multiple units. [00:29:11] Speaker 01: Let me try to figure out what it takes to make it ambiguous. [00:29:15] Speaker 01: Let's assume that scope of work clause was not there in 1955. [00:29:19] Speaker 02: The transfer of work clause? [00:29:20] Speaker 01: I'm sorry, transfer of work, I apologize. [00:29:22] Speaker 01: Transfer of work clause was not there in 1955. [00:29:25] Speaker 01: And that came in, is that if you didn't have, let's say if you didn't have the Transfer of Work Clause, take that out of this agreement, would you then be governed by the 1955 decision? [00:29:40] Speaker 02: Well, first, obviously, as you know, I can't speak for the board or what the board would have found in that case. [00:29:46] Speaker 04: Would you feel less comfortable in arguing the case? [00:29:49] Speaker 02: I would probably be shaking a little more right now than I am. [00:29:52] Speaker 01: How's that for an answer? [00:29:54] Speaker 01: Is it true that ambiguity exists as long as you can find one cause or a couple times somewhere ambiguity? [00:30:02] Speaker 01: I guess I really don't know or quite even understand what the board's test is for ambiguity. [00:30:09] Speaker 01: It could be that this new thing comes in and that that or that combined with the bargaining history is enough, but I thought your position was we have to find ambiguity first and then we can look at bargaining history. [00:30:22] Speaker 02: Absolutely. [00:30:23] Speaker 01: That is what Louisiana Doc says. [00:30:25] Speaker 01: Then is that enough? [00:30:26] Speaker 01: I thought ambiguity normally required two reasonable readings of the document as a whole. [00:30:32] Speaker 01: Right. [00:30:32] Speaker 01: And as opposed to simply finding a provision that uses some different language. [00:30:41] Speaker 02: Yes, and that's been our point. [00:30:45] Speaker 02: Obviously, the reason we focus on the transfer of work clause besides the fact, obviously, that it's the one that most supports our position and the one that the board rely on. [00:30:54] Speaker 01: It's really about the only one that does. [00:30:57] Speaker 01: The others are really just occasional scattershot references. [00:31:01] Speaker 02: Yeah, fair enough. [00:31:02] Speaker 02: Although I would argue that the side letters also show this integration into a single unit. [00:31:07] Speaker 02: But going back to the transfer of work clause, [00:31:10] Speaker 02: This is not a meal provision clause. [00:31:12] Speaker 02: This is not some kind of ancillary thing. [00:31:14] Speaker 02: It's not a meal provision clause or some kind of ancillary little clause off the side. [00:31:20] Speaker 02: This is really the heart of the agreement. [00:31:22] Speaker 02: NBC, as I said, is kind of like General Motors. [00:31:25] Speaker 02: It manufactures a product nationwide, different bits and pieces. [00:31:29] Speaker 01: Actually, I guess I had a question. [00:31:30] Speaker 01: Is that really true? [00:31:31] Speaker 01: I thought part of the issue here was that unlike General Motors, which is making the same cars for Virginia as it is for Maryland, [00:31:41] Speaker 01: The whole point is that NBC isn't producing just national product. [00:31:44] Speaker 01: It produces regional product, it produces local product, things aren't, and particularly with the evolution that was at issue here, it's producing things for taxicabs in some jurisdictions, and it really is not a single national product in the way that cars are. [00:31:57] Speaker 02: No, the national product is news. [00:32:01] Speaker 02: Now, that product may be different from one locale to another, but the news that is distributed... Is this just news? [00:32:10] Speaker 01: I mean, I thought you were talking about Dr. Oz and things like that. [00:32:12] Speaker 02: I'm sorry? [00:32:13] Speaker 01: We're talking about Dr. Oz show and things like that in here, too. [00:32:17] Speaker 02: Well, yeah. [00:32:19] Speaker 02: Fair enough. [00:32:21] Speaker 02: Various kinds of programming, right. [00:32:24] Speaker 02: But these programs, as you said, the Dr. Usho, at some point it was made in New York, at other times it was made in other cities. [00:32:32] Speaker 02: Those things move around. [00:32:34] Speaker 02: And also the feeds, where they gather their content, whether it be for news or for entertainment, that's from all over the country. [00:32:44] Speaker 02: And all of that coalesces into a single product, which is then a whole amount of product of information, which is then distributed among the various markets as NBCC's fit. [00:32:58] Speaker 04: In your footnote 17, [00:33:00] Speaker 04: You have lots of references to this agreement. [00:33:04] Speaker 04: Do you know whether any of those were there in 1955? [00:33:08] Speaker 02: No, but what I can tell you, Your Honor, is that in 1955, the Board actually pointed out that there was a reference to these agreements in the plural, and it italicized that in its decision. [00:33:20] Speaker 02: And now, we did not say, as NBC represents, that this was the basis of the board's decision. [00:33:27] Speaker 02: But it was notable enough for the board to italicize it and point it out. [00:33:32] Speaker 02: Now, I'd like to- I'm sorry. [00:33:33] Speaker 01: I don't want to interrupt your point, but I had one other textual question. [00:33:37] Speaker 01: I'm sorry. [00:33:38] Speaker 01: On JA 215, which is your intent and purpose clause, I was just trying to understand Roman 2, where it talks about individual articles, which will contain the description of each bargaining unit, and then says, which shall not be affected hereby. [00:33:52] Speaker 01: What does the which shall not be affected hereby clause mean? [00:33:56] Speaker 01: Does that mean the master agreement doesn't affect the description and scope of each bargaining unit? [00:34:05] Speaker 01: I just don't know what that was. [00:34:07] Speaker 02: That is how I read it, which is that if you have a unit of news writers, people who are defined as doing a certain job function, that individual agreement defines what their job function is. [00:34:20] Speaker 01: And it's not affected by the master agreement. [00:34:22] Speaker 02: It's not affected by the master agreement. [00:34:23] Speaker 01: So the description of each bargaining unit is not affected by the master agreement. [00:34:27] Speaker 01: That's what that language means? [00:34:28] Speaker 02: That's what that language appears to mean. [00:34:30] Speaker 02: But that's the same language that was there in 1955. [00:34:32] Speaker 02: And since then, there's been other additions that have changed the way the contract looks overall. [00:34:41] Speaker 01: But doesn't that then seem to say that really the definition of bargaining units is driven by the individual articles and not the single master agreement? [00:34:51] Speaker 02: That's what it would appear to say, but we wouldn't be having this debate if there wasn't some ambiguity in this contract. [00:34:56] Speaker 02: Certain provisions do point to multiple units, absolutely, but others point to a single unit. [00:35:01] Speaker 01: Including the ones the board before has said is the most important one. [00:35:04] Speaker 02: I'm sorry? [00:35:04] Speaker 01: Including the one the board in 1955 placed the most weight on. [00:35:08] Speaker 02: The board has said that typically you start with the recognition clause. [00:35:13] Speaker 02: And in 1955, the board also looked at that one. [00:35:16] Speaker 02: But as we said, the board in 1955 didn't discuss the transfer of work clause, found that these agreements existed as opposed to this agreement. [00:35:25] Speaker 02: There have been changes, as said. [00:35:26] Speaker 02: I realize my time has gone over, but I'd like to beg your indulgence for just a minute. [00:35:30] Speaker 03: Unless we have any more questions, you are out of time. [00:35:33] Speaker 02: I'm sorry. [00:35:34] Speaker 02: Thank you. [00:35:34] Speaker 03: Does Mr. Salvatore have any time left? [00:35:38] Speaker 03: You can take two minutes. [00:35:45] Speaker 05: Four quick points, Your Honor. [00:35:49] Speaker 05: The issue, to go back to Judge Edwards' first question, this is not a GM situation. [00:35:54] Speaker 05: It's not a CBS situation where there's a single nationwide unit. [00:35:58] Speaker 05: The issue is not whether there are multiple agreements. [00:36:01] Speaker 05: The parties here are party to one agreement, but they created [00:36:06] Speaker 05: over time, 12 separate bargaining units. [00:36:11] Speaker 05: And the fact that they're not separate signatories on every one is, we would say, is really irrelevant. [00:36:16] Speaker 05: The NABED filed four separate UC petitions here, and the board consolidated them. [00:36:23] Speaker 05: That shows the nature of what's happening. [00:36:29] Speaker 05: Second, there's no ambiguity here. [00:36:32] Speaker 05: The transfer of work clause and the side letter 50 and 51 [00:36:36] Speaker 05: Side letter 50 and 51 helps NBC. [00:36:40] Speaker 05: It shows that, in fact, there are multiple units. [00:36:42] Speaker 05: You wouldn't need side letter 50 and 51, which recognizes that you can transfer people from one unit to another. [00:36:49] Speaker 05: And if somebody's transferred, they remain a member of the original bargaining unit, unless there were multiple units. [00:36:55] Speaker 05: Third, the board mentioned Louisiana DOC. [00:36:59] Speaker 05: I just have to point out that Louisiana DOC supports NBC's position. [00:37:05] Speaker 05: There the board held that you need clear evidence, clear evidence to create a single nationwide unit. [00:37:11] Speaker 05: The board at page 29 of its brief concedes [00:37:15] Speaker 05: that Louisiana Docs Recognition Clause, which created multiple units, is similar to NBC and NABIT's recognition clause. [00:37:25] Speaker 05: Judge Millett pointed out that the individual articles prevail. [00:37:29] Speaker 05: That is very important here because that's where the units are, and that's the way this structure has been since 1955. [00:37:37] Speaker 01: Do you know if the transfer of work provision was in the 1955 agreement? [00:37:41] Speaker 05: I don't believe it was. [00:37:43] Speaker 05: I believe it did come later, but the transfer of work provision doesn't create any ambiguity here, Your Honor. [00:37:49] Speaker 05: It just shows that you can give non-bargaining unit work to NABIT or vice versa. [00:38:00] Speaker 05: So the plain language of the agreement, it's architecture, which is very important. [00:38:05] Speaker 05: The 60-year-old NLRB precedents between these parties. [00:38:09] Speaker 05: The NLRB ruling should be reversed. [00:38:11] Speaker 03: You're out of time. [00:38:12] Speaker 03: Thank you. [00:38:12] Speaker 05: Thank you. [00:38:13] Speaker 03: The case is submitted. [00:38:14] Speaker 03: Please call the next case.