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Case number 15-1217 at L, National Labor Relations Board Petitioner versus Tito Contractors, Contractors, Inc.

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Mr. Greenbaum for Tito Contractors, Inc.

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and Mr. Element for NLRB.

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Tell us the story.

[00:01:10] Speaker 04:
Let's wait till everyone gets cleared away.

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All right, Mr. Greenbaum, we don't often get NLRB cases from right here in the district, so this is an unusual one.

[00:02:02] Speaker 01:
Thank you, Your Honor.

[00:02:03] Speaker 04:
At least I haven't been on that one.

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I'll try to spice it up in light of the last argument.

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You're exactly correct, Your Honor.

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Lindo Contractors is a Washington DC-based general contracting firm that has contracts with local state and local governments in Maryland, Virginia, and the district.

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It's a local company.

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It employs approximately 100 employees.

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Part of its workforce provides general labor services, carpentry, skilled carpentry, masonry, and painting.

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to various local governments.

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Some employees who do those services are permanently stationed at the local government agency where they provide those services.

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For example, the Arlington Jail.

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They provide painting and carpentry and other services to that facility.

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A substantial group of employees also work at Maryland Environmental Services.

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Let me ask you about that.

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I don't see anywhere here where you have proposed a, I know you want a smaller unit, but what the unit would be.

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Would you separate out the recycling from the laborers and the one warehouseman and the two mechanics?

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In all candor, Your Honor, at the hearing we said our position was the unit as proposed by the union was inappropriate.

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We did not propose an additional, any other alternative units.

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But necessarily you want one that's smaller.

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We do want one that's smaller, but it's very difficult in this case, as I will explain.

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So with respect to Maryland Environmental Services... Right, it's very difficult to identify what that smaller unit would be?

[00:03:59] Speaker 01:
There would be many small units because, for example, at Maryland Environmental Services, which I'll call MES, there are three contracts.

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One is the Deerwood facility, which is... So let me just ask you.

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In the regional director's report, where

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I think it's, he starts out with a description of the employer's business operations.

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He recites for several pages the employer's proffer of proof.

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As far as you're concerned, is that an accurate statement?

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No, I don't believe so, Your Honor.

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It's not accurate.

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And what is inaccurate?

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Well, he doesn't go through the specific factors which need to be addressed in a community of interest analysis.

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So his recitation of the facts in our offer of proof should have been taken as true, and it was a pretty detailed offer of proof.

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They were not.

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And what the five factors are,

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Can I just be clear though, he does refer specifically to these separate contracts, including the contracts for Dickinson and Derwood facilities, Cockeysville, etc.

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That's correct in as far as it goes, but it doesn't go far enough.

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Is that your point?

[00:05:19] Speaker 01:
Exactly, Your Honor.

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And in their analysis, which there really is no analysis, so the recitation of the facts I think is taken in part from our offer of proof and is also taken from part of a transcript of a hearing later that day on the supervisory status.

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Right.

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Interestingly, those two issues should not be commingled, because the issue with the supervisors was not any of the MES employees.

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None of those were addressed in that at all.

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And I would emphasize.

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Let me ask you, though, about this regional director.

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Because to me, the most significant thing he said is there is no evidence of any interchange between the recycling employees on these, I take it, in these three facilities,

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or between the recycling employees and any other classification of employee.

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I mean, that is the whole community of interest factor that he said there is no evidence of community of interest and how the board, I'll ask the board lawyer, but how the board lawyer or how the board got to its footnote

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disposition of this case is beyond me, in view of that, and without having discussed that.

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I agree, Your Honor.

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And what's telling is, if you look at the dissent in the footnote, the dissent says, I would remand for the board to consider the evidence in light of the factors, which suggests to me there was no review of the facts.

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Because if you go through the five facts, which this court addresses in Sunderbrand's and Blue Man Group,

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None of those elements are even discussed in either the regional director decision or the board one-page denial of the request for review, even one paragraph.

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The interchange is just one factor, but there's no evidence of interchange.

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I think it's the mechanic who sometimes goes out to support another unit.

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But he goes out to support the laborers.

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It has nothing to do with MES.

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And that was from the supervisory hearing, which if the board is going to take an offer of proof, which we objected procedurally, then they have to take it as true.

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Lock, stock, and barrel.

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That's the standard.

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It's just one employee who they say goes out and

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But you say he doesn't go to the MES.

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Not at all, Your Honor.

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Interestingly, because the MES provides its own equipment.

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Tito Contractors provides no equipment for MES employees.

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It's just labor.

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In the board's opinion, exaggerates it by saying employees.

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There's evidence that employees plural.

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Right.

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Your Honor, it's no different than Sunder Brands, which this court remanded back to the board, because one, the board exaggerated the record.

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And two, it was, you know, they exaggerated, just like in that case, you know, they're extrapolating one employee going out to a construction site.

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I don't even know what it is in the record.

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There's really no elaboration.

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Well, actually, it's just the one employee.

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There is some evidence that the warehouse employee sometimes assists, and that's not even true.

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No, there's only one.

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One time.

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There's only one warehouse employee?

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Well, I mean,

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I don't see there's evidence that he sometimes assists.

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I think it happened one time according to Bautista.

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Right.

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And that's exactly the point, Your Honor.

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And I don't think I need to belabor it.

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If you read the regional director decision and the board footnote, really, there's no analysis of the five factors.

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And that's what the Act requires.

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Section 9 of the Act requires for the board to make a determination of the appropriate unit in each case.

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What is your burden, if any,

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if you're challenging the wall-to-wall unit, which you did even in your offer of proof, to say what unit you prefer.

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Yeah.

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The burden is set forth in the Greenhorn and O'Mara case.

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It's the employer's burden to establish that the petitioned for an employer-wide unit is inappropriate.

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So the burden is to go through the five factors.

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As this court said in Sunderbrand's, the presumption just gives the petitioner or the union the initial advantage.

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So are you saying you have no responsibility to say what the union, I mean, what the unit should be?

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Not at all, Your Honor.

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That's not in the act.

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And in fact, the case, the board cites the Moriah case, which is how they came up with this whole procedure.

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That case says definitely that if, and in that case, the employer took no position on the unit, whether it was inappropriate or appropriate.

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We took a position.

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But in that case, they said even if the employer does not take a position,

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the board still has authority to come up with an appropriate unit.

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In this case, the board could have decided a different unit at issue.

[00:10:22] Speaker 04:
Well, the board always has the responsibility to come up with the appropriate unit.

[00:10:27] Speaker 04:
I don't understand what you're saying.

[00:10:29] Speaker 01:
That's right.

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We have no burden to come up with an appropriate unit.

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My question to you is, if you're challenging a presumptive, whether this is presumptively appropriate or not,

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I mean, let's assume it is, that you're saying you have no burden once you challenge it to say what an appropriate unit is in your view.

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In our view, no.

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I haven't seen any case which says that.

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Some cases say what the cases say, and I think it's the Laurel

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Associates case, they cite, it's an NLRB case.

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They say what happens is first the board or the regional director has to decide whether the petition for a unit is inappropriate.

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If it's inappropriate, it ends.

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That's it.

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It's an appropriate unit, and they will direct an election.

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If it's inappropriate, they will either scrutinize the employer's proposals,

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or come up with a unit on their own that's appropriate.

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But in this case, they found that the unit was appropriate.

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Based on a limited record, they didn't review our offer of proof or at least take it as true.

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In other words, what I think, well, what I'd like to understand is where you have

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the board saying a wall-to-wall unit is presumptively appropriate, and the employer says not so.

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Hypothetically, employer wins.

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It goes back to the board.

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The board says, okay, maybe two units.

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And the employer comes back here and says, no, two units is not appropriate either.

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We send it back to the board.

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I mean, when does this come to an end?

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Does the board have to have some notion of the employer's thoughts in this matter?

[00:12:32] Speaker 01:
I haven't seen any case that says that.

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So it could just have a perpetual, you'll be back here every two years, challenging the unit?

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Yeah, I don't think so, Your Honor.

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I think what could have happened is if the board came back and said it's inappropriate and they didn't want to, on their own, decide an alternative, the union could have petitioned for another unit right away.

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There would be no waiting period, no sort of one-year certification.

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So the burden is on the union, so the union says, well, let's have two.

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They're the petitioning party.

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And you say no?

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Come back.

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In other words, I thought there's some notion in the statute that we're trying to move this process forward and not have a perpetual litigation merry-go-round.

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That's why it may not be a burden in a sense of a legal obligation.

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But in fact, the cases, either the employer has not raised any objections

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or the employer has made another proposal that the board can look at and maybe the parties can agree.

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Yeah, and actually there is something in the end of the transcript where the

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hearing examiner asked the union whether they would go to election with any unit the regional director found appropriate and there's some discussion, he said they want one election, which means everything.

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They could have amended their petition to have smaller units.

[00:14:06] Speaker 05:
But you see what I'm getting at.

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I see what you're getting at, Your Honor.

[00:14:08] Speaker 05:
You'll never get an election.

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You'll never get bargaining.

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Decades pass while we're trying to figure out what's going on.

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It seems to me there has to be some burden on both parties.

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The union says what it wants.

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The employer says what it wants.

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The board makes the decision.

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But not to have sort of this three ring

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position.

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That's what I'm concerned about.

[00:14:29] Speaker 04:
No, I understand the concern, Your Honor.

[00:14:31] Speaker 04:
In the language you quoted from Laurel Associates, if it's appropriate, the inquiry ends, and you quoted it exactly.

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If, however, it's inappropriate, the board will scrutinize the employer's proposals, which implies that

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You do have to have a proposal.

[00:14:50] Speaker 03:
Well, there's also Mariah, Your Honor, which I think... Well, I don't think you have to, but his position is he doesn't ever have to.

[00:15:04] Speaker 01:
Well, Your Honor, the Moriah case, which is the board case they rely on, the fact that the employer declined to take a position on the unit does not prevent the regional director from making a unit determination.

[00:15:15] Speaker 04:
So I understand that.

[00:15:17] Speaker 04:
But I hear you saying you don't ever have to, if we send this back to the board, you don't ever have to say anything about what you think is an appropriate unit.

[00:15:27] Speaker 04:
And I understand you're saying it's the union that wants the bargaining unit.

[00:15:32] Speaker 01:
They're the petitioner.

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If the unit's inappropriate, it's inappropriate.

[00:15:37] Speaker 04:
Judge Rogers is making a good point.

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This just can't go on and on and on.

[00:15:41] Speaker 03:
Well, are there any cases in which you've seen it go on and on?

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Any case where it's come up even a second time?

[00:15:49] Speaker 01:
I think what would happen is if the board, if the regional director came back, and the regional director comes back with these decisions pretty quickly, came back and said that's an inappropriate unit, I think what would happen is the union,

[00:16:02] Speaker 01:
would make a new petition if they had a showing of interest.

[00:16:06] Speaker 05:
No, but we'd be right back here.

[00:16:07] Speaker 05:
That's all I'm trying to get at.

[00:16:09] Speaker 05:
I understand your point, but there's nothing to prevent us two years from now seeing you again, and two years after that, seeing you again, because the employer has never shown its hand.

[00:16:19] Speaker 05:
It obviously, not obviously, I take that back, but it wants to delay the process.

[00:16:25] Speaker 05:
So it just says, Union, you propose, or we'll come up to the DC Court of Appeals,

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get remanded, start all over again.

[00:16:35] Speaker 05:
That's not the notion, it seems to me, that Congress had in mind in passing this statute, is it?

[00:16:44] Speaker 01:
I don't think so, and frankly, Your Honor, this is probably one of the last cases you're going to get under the old NLRB rules.

[00:16:51] Speaker 01:
There are new election rules which come into play, and a lot of these issues are deferred, not whether it's an appropriate unit.

[00:16:59] Speaker 01:
I think that's still subject to a pre-election hearing.

[00:17:02] Speaker 01:
But again, frankly, if the regional director took evidence,

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maybe we wouldn't be here either.

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If they actually let us have a hearing and took evidence, maybe from that hearing there would have been some proposals.

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We were just sort of went into this hearing and said, okay, it's a presumptively appropriate unit, which we objected to.

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I mean, it's not subject to this appeal.

[00:17:25] Speaker 01:
We did object to the presumption because

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You know, we have all these disparate facilities which the employees do not report to Tito's headquarters building in Washington, D.C.

[00:17:38] Speaker 01:
They never go there.

[00:17:39] Speaker 01:
And in fact, Your Honor, I found it interesting that when there was an election in this proceeding, it had to be a mail ballot election because MES wouldn't allow an election to be conducted on its premises.

[00:17:54] Speaker 05:
I know, but the point is you describe your client as a general

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contracting firm that operates in the greater Washington DC metropolitan area.

[00:18:05] Speaker 05:
So that's a lot of firms, all right?

[00:18:09] Speaker 05:
And the way you want us to look at this is it's really not a single firm.

[00:18:15] Speaker 05:
It's many firms.

[00:18:16] Speaker 05:
It does recycling, and then it does all these other things.

[00:18:22] Speaker 05:
All right, but I can hear the next argument that, no, it's really three firm because the employees have different skills, do different tasks at different locations.

[00:18:35] Speaker 05:
I mean, we're a hundred different bargaining units.

[00:18:40] Speaker 05:
and the whole system comes to a halt.

[00:18:44] Speaker 01:
Well, Your Honor, the only close analogy I would have is in the healthcare industry, Congress stepped in, and that's really the Laurel Associates case, where there was a congressional intent to limit the proliferation of bargaining units in healthcare.

[00:18:58] Speaker 01:
There's not that end for a company like Tito Contractors.

[00:19:02] Speaker 05:
No, I'm not getting to that.

[00:19:03] Speaker 05:
I'm getting to when does this process end.

[00:19:07] Speaker 05:
I mean, you may win the election, who knows?

[00:19:10] Speaker 05:
But we'll never know because we'll never get to an election because we can never get this bargaining unit.

[00:19:15] Speaker 05:
Well, they won the election.

[00:19:17] Speaker 01:
So there were 87 employees in the voting, 87 eligible.

[00:19:21] Speaker 05:
You're trying to get all that set aside so we'd start again.

[00:19:24] Speaker 01:
Well, interesting, Your Honor, and I alerted the board to this, and I found out after we submitted our briefs, Tito was not the lowest bidder on the Dearwood MAS contract, and those employees are no longer employed by Tito.

[00:19:39] Speaker 01:
They're at the MAS facility with the lowest bidder.

[00:19:43] Speaker 01:
So there's a significant change in the scope of the bargaining unit anyway.

[00:19:49] Speaker 01:
And I just learned that right before the oral argument.

[00:19:53] Speaker 03:
When the votes were tallied, was there a record as to how many at each facility or each business voted each way?

[00:20:02] Speaker 01:
No, but I don't know.

[00:20:03] Speaker 01:
There's no record of that, but there were 87 eligible voters.

[00:20:07] Speaker 01:
I believe 54 were MES employees, and the rest were the various... But you don't have a breakdown of them?

[00:20:14] Speaker 01:
No breakdown.

[00:20:16] Speaker 03:
The general counsel of the board has a remit, I mean, they will impose a sanction on you if you are, if you come along and contest the next one and it's deemed frivolous, or even if you lose, you'll be subject to paying the union's costs, attorney's fees, or maybe the board's attorney's fees, I should say.

[00:20:43] Speaker 03:
And not back pay, but what is it?

[00:20:51] Speaker 03:
I'm just looking at the general counsel's memo on this fee shifting and reimbursement of bargaining costs.

[00:20:59] Speaker 03:
Well, I probably won't have bargaining costs.

[00:21:01] Speaker 03:
Right.

[00:21:01] Speaker 03:
Right.

[00:21:02] Speaker 03:
All right.

[00:21:07] Speaker 04:
Thank you, Your Honor.

[00:21:11] Speaker 04:
Mr. Elman.

[00:21:18] Speaker 02:
May it please the court, good morning, Your Honors.

[00:21:21] Speaker 02:
Michael Allman on behalf of the board, seeking full enforcement of its order.

[00:21:25] Speaker 02:
I, of course, do want to turn to both the warehouse employee issue and then the issue of proposing other bargaining units, because I can see the court is interested in that.

[00:21:35] Speaker 04:
But I would just- Before you do that.

[00:21:37] Speaker 04:
Yes.

[00:21:37] Speaker 04:
Could you turn to the footnote?

[00:21:39] Speaker 04:
Sure.

[00:21:40] Speaker 04:
All right.

[00:21:40] Speaker 02:
The board's footnote.

[00:21:41] Speaker 02:
Yes.

[00:21:42] Speaker 04:
Yes, I- Well, just, I want to ask you, first of all,

[00:21:50] Speaker 04:
What does it mean that no party seeks to represent any of the employees in a smaller unit?

[00:21:56] Speaker 04:
That can only mean a union.

[00:22:00] Speaker 04:
Are you talking about a second union?

[00:22:02] Speaker 04:
Are you saying that the union has to both say, we want wall-to-wall, but we also want smaller if we don't get that?

[00:22:10] Speaker 04:
I don't understand.

[00:22:12] Speaker 04:
No party seeks to represent any of the employees in a smaller unit.

[00:22:16] Speaker 04:
Sure, your honor.

[00:22:17] Speaker 04:
So what?

[00:22:18] Speaker 02:
In some cases where there's a representation hearing, there are two unions that come forward.

[00:22:23] Speaker 02:
And one union says, I want to organize the employees this way.

[00:22:27] Speaker 02:
And another union says, they want to organize the employees in another.

[00:22:31] Speaker 02:
So I think probably what the board meant there is just that's not involved in this case.

[00:22:35] Speaker 02:
There's no other.

[00:22:37] Speaker 04:
And it goes before that in the same sentence.

[00:22:39] Speaker 04:
It says, there's no evidence of collective bargaining in smaller units.

[00:22:43] Speaker 04:
Now, I know.

[00:22:44] Speaker 04:
that that can be a factor, it can't be the controlling factor.

[00:22:47] Speaker 04:
But the board has one footnote in which it has what I think can be described as extraneous reasons and doesn't even mention that there is no evidence

[00:23:03] Speaker 04:
that there is no interchange among the three recycling facilities and no interchange between the recycling facilities and the laborers.

[00:23:14] Speaker 02:
Yes, Your Honor.

[00:23:14] Speaker 02:
Absolutely.

[00:23:15] Speaker 02:
And I do understand that the Court's concerned.

[00:23:17] Speaker 02:
Let me try to break it down and give you a few answers on the different questions.

[00:23:21] Speaker 02:
One, in terms of the- Excuse me one second.

[00:23:23] Speaker 03:
There's actually an erroneous claim to the country, where it says the warehouse employees sometimes assist with other employer projects.

[00:23:33] Speaker 02:
I think that is accurate from the record, Your Honor.

[00:23:36] Speaker 02:
And if I could point to JA 149, from Tito's own brief to the board, it said, quote, the warehouse employee coordinates shipments and deliveries with other employees.

[00:23:48] Speaker 03:
And so... He's running a warehouse.

[00:23:50] Speaker 03:
That's not surprising.

[00:23:52] Speaker 03:
That's not going out and working with the other employees.

[00:23:54] Speaker 03:
The other unit of other sites.

[00:23:56] Speaker 02:
Well, Your Honor, but he is having interactions with these employees, according to Tito's own brief.

[00:24:01] Speaker 02:
I mean, it's not substantial interaction, and we recognize that.

[00:24:05] Speaker 02:
And I'm certainly not trying to persuade the court that there's a lot of interaction between the warehouse employees and the other employees, and certainly no interaction with the recycling employees.

[00:24:15] Speaker 03:
We can see that.

[00:24:16] Speaker 03:
It's like saying that somebody at the general office who answers the phone forwards the calls to employees at various sites.

[00:24:25] Speaker ?:
Right?

[00:24:26] Speaker 02:
No, I think the testimony was a little bit more than that from Mr. Battista, that they had worked together, that he knew this employee from his work at the warehouse.

[00:24:36] Speaker 02:
We don't have a lot of information on their interaction, but I also don't think that the board was substantively, I don't think that was a major factor in the board's decision.

[00:24:45] Speaker 02:
Really, the major factor.

[00:24:47] Speaker 02:
What do you think of that?

[00:24:48] Speaker 02:
I think the major factor is the presumption of appropriateness of the employer-wide unit, which assumes an inherent community of interest between the employees.

[00:24:58] Speaker 03:
I think that's the biggest problem with Teo's argument here today.

[00:25:16] Speaker 03:
business and by the company itself and the other side.

[00:25:22] Speaker 03:
There's a lot of things they put in to refute the presumption of a wall-to-wall unit.

[00:25:32] Speaker 02:
Well, Your Honor, I don't think they met their burden in refuting that presumption.

[00:25:39] Speaker 03:
Let me give you... I'm not sure whether they did, but they're not given an answer.

[00:25:44] Speaker 03:
It's not clear what it is that they failed to do or what the board failed to credit or to attach significance to.

[00:25:51] Speaker 03:
In some other cases, you see the board engaging with the parties and saying what the problem is.

[00:26:01] Speaker 03:
I think it was in Sundor, with this very panel, in which we sent the unit determination back for just that deficiency.

[00:26:10] Speaker 02:
Well, of course, I do want to get to the community of introspectives here, but I would note in Sundor, of course, you had there the board approving a parsed unit.

[00:26:20] Speaker 02:
It wasn't a presumptively appropriate employer-wide unit.

[00:26:23] Speaker 02:
In fact, the employer in that case wanted an employer-wide unit because it would have enhanced collective bargaining, as employer-wide units often do.

[00:26:31] Speaker 02:
But what the board did in that case was it approved a smaller unit of select employees, and this court said that the board did not justify that parsing of the unit.

[00:26:43] Speaker 02:
But I would submit it's very different when you have a presumptively appropriate employer-wide unit.

[00:26:48] Speaker 03:
Well, in this case, there was a presumptively appropriate unit.

[00:26:51] Speaker 02:
No, Your Honor, the issue of the presumptively appropriate unit came up because the employer said, we want an employer-wide unit and therefore we want the court to basically apply a reverse presumption.

[00:27:04] Speaker 02:
That is, because an employer-wide unit is presumptively appropriate, we the employer want to take advantage of that presumption even though it's not the unit that the union proposed.

[00:27:14] Speaker 02:
And what this court said was no, it's for the union to propose the union consistent with the Supreme Court's decision in metropolitan life.

[00:27:25] Speaker 02:
And it's not a 95 violation to use that presumption in assuming that there's an inherent community of interest

[00:27:32] Speaker 02:
between employees and a statute.

[00:27:35] Speaker 03:
And we said, okay, well, yes, it gives the union a little leg up at the start, but it's not making the extent of organization determinative.

[00:27:44] Speaker 03:
Right.

[00:27:44] Speaker 03:
Absolutely.

[00:27:46] Speaker 03:
But so we say, well, look, that is on the table, as it were, even though it's not supposed to be determinative.

[00:27:54] Speaker 03:
But then we go on and say, under the heading of substantial evidence,

[00:27:58] Speaker 03:
that the board simply failed to, they invoked six factors, the three of which I think it was, the court could find no rationale or real response to the union's, pardon me, the employer's objections.

[00:28:18] Speaker 02:
But I do think here, the board, although, and I agree with the court's concern that it's brief, does go through commonality that exists between these employees.

[00:28:29] Speaker 03:
What does it do with the fact that there are some elements of non-commonality, such as who sets the pay and conditions?

[00:28:36] Speaker 03:
Sure.

[00:28:37] Speaker 03:
Is that addressed in here?

[00:28:39] Speaker 02:
It is not.

[00:28:40] Speaker 03:
And swinged away as being, well, that's not really sufficient for some reason to be determined?

[00:28:44] Speaker 02:
The board does not go through the factors that are not present.

[00:28:47] Speaker 02:
I would agree with the court.

[00:28:49] Speaker 03:
Why isn't that enough?

[00:28:50] Speaker 03:
The employers come in and said something pretty important.

[00:28:53] Speaker 03:
The wages, hours, and working conditions are not set centrally by us because they're subject to county and city contract rules.

[00:29:01] Speaker 03:
And the board said nothing.

[00:29:04] Speaker 02:
Well, Your Honor, it's not that it doesn't say nothing.

[00:29:06] Speaker 03:
In response to that?

[00:29:07] Speaker 03:
Did it say something in response to that?

[00:29:09] Speaker 02:
It didn't say anything in response to the lack of certain commonality with the employees, but it did address all the commonality that does exist with the employees.

[00:29:17] Speaker 02:
And I think where you have a presumptively appropriate unit, and it's the burden of the employer.

[00:29:22] Speaker 03:
But substantial evidence is on the whole record.

[00:29:25] Speaker 03:
It's got to take account of the contrary submissions.

[00:29:29] Speaker 02:
Sure, Your Honor, and I... And it didn't.

[00:29:32] Speaker 02:
I mean, you just seem to say it didn't, but... Well, it didn't state those in its own opinion.

[00:29:39] Speaker 02:
I mean, the regional director, of course, says that he took account of the entire offer of proof.

[00:29:43] Speaker 02:
Yep, the RD didn't give any reasons either.

[00:29:46] Speaker 03:
I mean, it's just a conclusion.

[00:29:48] Speaker 02:
Yeah, I mean he says, I find based on the record evidence, including the employer's offer of proof, that the employer has failed to overcome the presumption of the program.

[00:29:57] Speaker 03:
That doesn't tell us anything about the reasoning.

[00:29:59] Speaker 03:
What was the problem with the employer's offer that made it insufficient?

[00:30:03] Speaker 02:
Well, I think that's what the board states in its footnote.

[00:30:06] Speaker 02:
That is, all these employees work in the same geographic area.

[00:30:09] Speaker 02:
They perform similar skills and duties.

[00:30:12] Speaker 02:
They do both skilled and unskilled physical labor.

[00:30:15] Speaker 03:
That's so uninformative that they do unskilled and unskilled physical labor, like saying they're all employees.

[00:30:26] Speaker 02:
I would say two things to that, Your Honor.

[00:30:28] Speaker 02:
Really, in the employer-wide unit presumption, that is what we are looking to.

[00:30:34] Speaker 02:
All these employees have the exact same bargaining relationship with their employer.

[00:30:40] Speaker 03:
Well, how can you say that when the employer cannot determine some of the conditions?

[00:30:46] Speaker 02:
Well, it can determine the conditions.

[00:30:48] Speaker 02:
Tito is the one negotiating contracts with MES, with Arlington County.

[00:30:53] Speaker 02:
The buck stops with Tito.

[00:30:54] Speaker 02:
There's no dispute here that anything Tito is doing, it is doing at the pest of customers.

[00:31:02] Speaker 02:
The customers don't have their own authority to hire or fire employees in and out of Tito.

[00:31:08] Speaker 02:
They can request it.

[00:31:09] Speaker 02:
There's provisions in a contract setting certain numbers of hours.

[00:31:12] Speaker 02:
But that is all controlled by Tito negotiating those contracts with customers.

[00:31:17] Speaker 02:
I don't take Tito to be saying that, well, just because we have customers out there, we're not the one that is controlling these employees.

[00:31:24] Speaker 02:
And they do make this joint employer argument, which I'd like to get to in a moment.

[00:31:28] Speaker 03:
Take the example you just gave.

[00:31:31] Speaker 03:
Some of the sites will assert the ability to say, don't send us employee X or do send us employee Y. Now, I suppose the contract between T&O and that public body allows for that.

[00:31:49] Speaker 02:
The offer of proof stated that the MES can request Tito to not send those employees.

[00:31:58] Speaker 02:
There was never anything stated in the offer of proof, and I've checked Tito's brief, they don't say it here, that MES can just fire somebody.

[00:32:05] Speaker 03:
No, no.

[00:32:06] Speaker 03:
No, I understand that.

[00:32:07] Speaker 03:
They can say they'd like so-and-so not sent or someone else not.

[00:32:11] Speaker 03:
And other employers with whom the company contracts don't have that.

[00:32:17] Speaker 02:
That's not my understanding, Your Honor.

[00:32:20] Speaker 02:
I would think any of the customers that Tito has could request the Tito.

[00:32:24] Speaker 03:
Well, when you get away from the MES side, there's no suggestion in the proper that that's true at all.

[00:32:30] Speaker 02:
Well, I don't know.

[00:32:31] Speaker 02:
I mean, the Tito stated that, you know, the four employees that report to Arlington County go there on a daily basis.

[00:32:41] Speaker 02:
They receive instructions from Arlington County and

[00:32:47] Speaker 02:
And as Tito stated in the offer of proof, the contract also provides that the county has the right to request removal of those employees.

[00:32:56] Speaker 02:
So I think it's true that certainly on the laborer side of the business, Tito does have customers that can request, as I would think, any customer of a general contractor.

[00:33:05] Speaker 02:
On which side of the business?

[00:33:05] Speaker 02:
On the laborer side of the business.

[00:33:07] Speaker 02:
So this is from the offer of proof where they're discussing the Arlington County.

[00:33:11] Speaker 03:
Yes, so it's the MES.

[00:33:12] Speaker 03:
Well, not MES.

[00:33:13] Speaker 03:
Pardon me.

[00:33:14] Speaker 03:
public contracting side, not the construction side.

[00:33:19] Speaker 02:
Well, I'm not sure there's a difference, Your Honor.

[00:33:21] Speaker 02:
That is, what we've termed, and I think what Tito has termed, the laborer side of the business, which I think is around 30 people who do general contracting, and also some of those employees work under contracts with either Arlington County, Baltimore City, or Fairfax County.

[00:33:38] Speaker 02:
In those circumstances, just like on the recycling side of the business, you have customers that can request that, I don't like this employee, I don't like the work he's doing, I would like him removed from our shop.

[00:33:49] Speaker 04:
Yeah, but the recycling has so much more authority.

[00:33:51] Speaker 04:
It can cut the hours, it can... Right.

[00:33:55] Speaker 04:
Days and how many days a week.

[00:33:57] Speaker 04:
Yeah, which the...

[00:33:59] Speaker 04:
Maybe a customer can say, I don't want you painting for the next six hours, but I wanted to ask you about the position in your brief that Tito's labor management relations are centralized.

[00:34:12] Speaker 04:
Now, the board never mentioned that.

[00:34:16] Speaker 04:
They didn't, Your Honor.

[00:34:17] Speaker 04:
So we can't consider it.

[00:34:18] Speaker 02:
Well, I would disagree with you there, Your Honor.

[00:34:20] Speaker 02:
I mean, the board applies the employer-wide presumption.

[00:34:23] Speaker 02:
And I think what we are trying to do in our brief is explain why the employer-wide presumption.

[00:34:29] Speaker 04:
You've got to live with this footnote.

[00:34:32] Speaker 04:
You've got to live with this footnote.

[00:34:34] Speaker 02:
I agree, Your Honor.

[00:34:35] Speaker 04:
And not only the footnote, but you've got to explain why you ignored

[00:34:43] Speaker 04:
the finding by the regional director that there was no evidence of interchange among the recycling themselves, intersay, whatever, and between the recycling and the laborers.

[00:34:56] Speaker 02:
Yes, Your Honor.

[00:34:56] Speaker 02:
There was no interchange.

[00:34:57] Speaker 02:
Interchange is not required.

[00:34:58] Speaker 02:
There's a lot of units, and in many of the cases, recycling.

[00:35:01] Speaker 04:
That's one of the cardinal attributes of a community of interest.

[00:35:06] Speaker 02:
I would respectfully disagree, Your Honor, that employees do other – I mean, if you look at Airco, which is a case we cite – Well, I don't know.

[00:35:13] Speaker 04:
Maybe we're arguing about what interchange means.

[00:35:15] Speaker 04:
To me, that didn't mean that they did each other's jobs, but that they didn't even see each other, that they had no contact.

[00:35:21] Speaker 03:
Yeah.

[00:35:22] Speaker 03:
In Sandor, we said, well, just filling in when somebody is out sick or something or on vacation, that's not interchange.

[00:35:30] Speaker 02:
Well, yes, Your Honor, but of course, again, there, the court, I think, was trying to get at why this unit was split up and why some people weren't included in the unit.

[00:35:40] Speaker 03:
But, I mean, if you look at a case like Acme Markets, you would... What did the court say about the employees who were 60 miles away?

[00:35:48] Speaker 02:
I think still with the presumption of appropriateness, it's still proper.

[00:35:53] Speaker 02:
I mean, if you look at a case like Acme Markets, you had employees in drug stores over four different states.

[00:35:58] Speaker 02:
They never saw each other.

[00:35:59] Speaker 02:
They weren't even close to each other.

[00:36:00] Speaker 02:
They were in Pennsylvania, Delaware, Maryland, and New Jersey.

[00:36:03] Speaker 02:
But because it's an employer-wide unit, the type of unit that they act specifically list as an appropriate unit, the presumption applies, and I would agree with the Court.

[00:36:13] Speaker 02:
It's a strong presumption.

[00:36:15] Speaker 02:
It's very difficult for employers to rebut that presumption.

[00:36:18] Speaker 03:
I'm sure you're right about that.

[00:36:20] Speaker 03:
It's just that the Board has to explain itself adequately to defend the presumption, to apply the presumption in the face of some attempt by the employer to defeat it.

[00:36:30] Speaker 02:
Sure, Your Honor, and I would reiterate to the Court that I think the Board's order is sufficient on that regard, because it applies the presumption, it notes the commonality between the employees, and then concludes that this is an appropriate unit.

[00:36:43] Speaker 04:
I think Judge Rogers has a question for you.

[00:36:45] Speaker 04:
No, I should.

[00:36:46] Speaker 02:
You have one.

[00:36:46] Speaker 04:
You have one.

[00:36:48] Speaker 04:
You're OK?

[00:36:48] Speaker 04:
Yeah.

[00:36:49] Speaker 04:
All right.

[00:36:49] Speaker 04:
You have one, but I don't have another.

[00:36:51] Speaker 04:
No.

[00:36:52] Speaker 04:
Do you have another?

[00:36:52] Speaker 04:
No.

[00:36:53] Speaker 04:
All right.

[00:36:53] Speaker 04:
Well, you're out of time.

[00:36:54] Speaker 02:
Oh, yes, Your Honor.

[00:36:57] Speaker 04:
Thank you.

[00:36:57] Speaker 04:
I thank the Court.

[00:37:01] Speaker 00:
All right, why don't you take one minute?

[00:37:06] Speaker 05:
I just want to- I have one question, all right?

[00:37:12] Speaker 05:
So I'm clear.

[00:37:14] Speaker 05:
When I hire contractors from Tito Construction to build a barn or whatever,

[00:37:24] Speaker 05:
I have a contract with them and I tell them I don't want them to work on Wednesdays and I don't want them to work before 7 a.m.

[00:37:31] Speaker 05:
in the morning.

[00:37:33] Speaker 05:
So and then maybe I don't feel well one day so I say I call and I say please hold them off.

[00:37:41] Speaker 05:
Now the contracts that were proffered here are with

[00:37:47] Speaker 05:
either governmental or quasi-governmental entities.

[00:37:51] Speaker 05:
So there's a little more formality, perhaps, about it.

[00:37:54] Speaker 05:
But isn't the nature of being a general contracting firm such that you are continuously dealing with customer satisfaction, whether that means through a formal contract process or just because I'm the lady who doesn't want anybody there before 7 a.m.

[00:38:15] Speaker 05:
in the morning.

[00:38:17] Speaker 05:
So when the board comes back and says, as it does in this footnote, what I need to be clear on is, is your main point that the board simply didn't explain beyond that footnote?

[00:38:35] Speaker 05:
Or is your alternative argument that the board was required to allow your client to introduce evidence to show the inappropriateness of this unit that

[00:38:47] Speaker 05:
It could have used its proffer procedure, but if it was going to use that, then it had to take everything used, the proffer said basically as true, and deal with it.

[00:38:57] Speaker 05:
And that's not what happened here?

[00:38:59] Speaker 01:
Yes, but we were taking both those positions.

[00:39:02] Speaker 05:
They're somewhat interrelated, I realize.

[00:39:04] Speaker 01:
I think so.

[00:39:06] Speaker 01:
One thing, the board cites in its briefs that there's evidence of centralized labor relations, and I looked at the site in the transcript, and it doesn't say that.

[00:39:16] Speaker 01:
There's no evidence of centralized labor relations, and if we were allowed to introduce evidence,

[00:39:24] Speaker 01:
You would see that the MES employees are controlled by MES.

[00:39:28] Speaker 01:
MES has supervisors on the floor watching the performance of the employees.

[00:39:33] Speaker 05:
Yeah, but I don't see why that isn't just standard operating procedure.

[00:39:36] Speaker 05:
When I hire somebody, I'm going to watch what they're doing or I'm going to have somebody watch on my behalf.

[00:39:45] Speaker 05:
That's what I'm trying to be clear on.

[00:39:47] Speaker 05:
We want the board to explain, and it could explain, but your point is it really can't explain adequately.

[00:39:53] Speaker 05:
unless it takes your entire proffer as true.

[00:39:57] Speaker 01:
That's correct, Your Honor, and that's also not the case with other employees.

[00:40:00] Speaker 01:
That's not the case with all the employees.

[00:40:03] Speaker 01:
No, I know.

[00:40:03] Speaker 05:
Sometimes you do it directly, but other times you get a contract from me.

[00:40:07] Speaker 05:
That's my only point.

[00:40:09] Speaker 01:
And that would be the other employees, because there's four assigned to the Arlington jail.

[00:40:13] Speaker 01:
That's more akin to Arlington controlling terms and conditions of employment.

[00:40:19] Speaker 03:
If I recall correctly, the page is cited for centralized management control.

[00:40:24] Speaker 03:
said only that if an employee has a complaint, they have to talk to Mr. Tito.

[00:40:32] Speaker 01:
I think that was from the labor side.

[00:40:36] Speaker 01:
I think at the MES side, those employees never go to Tito.

[00:40:39] Speaker 01:
They never go to that building.

[00:40:41] Speaker 01:
If they have a complaint, they actually, if we were allowed to introduce evidence, they go to MES.

[00:40:46] Speaker 01:
And that's what the evidence would show.

[00:40:47] Speaker 01:
That's what's happened.

[00:40:49] Speaker 01:
That's what happens.

[00:40:52] Speaker 04:
All right.

[00:40:53] Speaker 01:
Thank you.

[00:40:53] Speaker 01:
Thank you, Your Honor.