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Case number 14-1074 at L, Public Service Company of New Mexico, Petitioner vs. National Labor Relations Board.

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Ms.

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Google for the petitioner and Mr. Dost for the respondent.

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May it please the court.

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Good morning.

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I'm Robin Goble.

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I am here on behalf of Petitioner Cross Respondent, a public service company of New Mexico.

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Thank you for the opportunity to be here today.

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The company is appealing from several decisions by the National Labor Relations Board.

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Three issues are brought before the court where we think that the board committed a clear error.

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The first issue,

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involves requests for information with respect to non-unit employee data.

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And it's the company's position that it was a long-standing relevancy burden that the union did not meet and that the board's decision departed from this precedent without any reasoned explanation for having done so in this case.

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The second issue is with respect to interpretation of a very important provision

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in the party's collective bargaining agreement that provides for an informal discussion process in attempts to resolve grievances at an early step.

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And it's our position that the board applied the wrong law in reaching this decision, did not look at the plain language of the contract, found that the company violated the act by departing from its own

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reasonable interpretation of that provision, which the board recognized was a plausible construction, and instead used past practice during the course of the contract to determine that the companies had violated the Act and departing from that practice.

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There is a secondary issue there that I'm willing to, because of the brevity of time that I have today, with respect to the second supervisor change,

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Rest on the briefing unless the court has specific questions.

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But with respect to second issue, I do intend to focus primarily on the interpretation of the informal step discussion.

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Lastly, there's a third issue that may seem somewhat limited to facts, but is important to the company because it does impact its management rights, its inherent management rights as recognized by labor law, to manage those processes that fall outside of a CBA that are not impacted by a CBA.

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and to conduct its business as it please is best.

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And that deals with processes for managing its HR department and relates to a steward's interest in expressing a complaint of alleged discrimination to the HR department.

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And despite the fact that he utilized this other process that's available to all employees, the board, without any evidence to support it, recast that.

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reported a complaint to the HR department as a grievance under the CDA and found that the company had committed an unfair labor practice by not processing it as one.

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Turning to the first issue, there are a number of requests for information.

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that relate to grievances that the union served upon the company that were very broad and sought unit employee information and non-unit employee information.

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The unit employee information was provided.

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So that's not an issue here.

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What is at issue was the company said that the respondent to the request by contending that these are not similarly situated employees.

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And while the relevancy burden, admittedly, is a low one, there has always been this dichotomy that has been recognized for decades between a request for information for unit employee information, which is, of course, presumptively relevant, and then what the burden is on the union if it seeks non-unit employee information, which is not presumptively relevant.

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What weight should the court give to the board's decision in 2011 regarding your client's

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on information.

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Is the court referring to, is this the LIVTAC decision that was taken to the 10th?

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I believe that's the case that was reviewed at the 10th Circuit.

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I'm talking about the board's decision.

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Okay, there's a couple of decisions and I'm a little confused.

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Does Your Honor happen to know, is that the Lyft hack or the Schmidt decision?

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Is that the Lyft hack decision or the Schmidt?

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This is Chairman Liebman, Pierce and Hayes.

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Decided May 24th, 2011.

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And in that opinion, regarding requests for information, the board sets out the standards.

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And I just want to know what weight, if any, we give to that decision by the board telling your client.

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what the standard was.

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Yes, Your Honor.

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Now I know which one.

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There were two at issue that have been referenced by the board.

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Now I know which one Your Honor is referring to.

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2011.

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Yes.

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There is no difference to be given there, because that was a factually different situation with respect to those requests for information.

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What about the legal standard the board identified?

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Well, the legal standard that is relied upon

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is not a different legal standard than what has been recognized with respect to demonstrating on the disparate treatment theory that a non-unit employee are similarly situated.

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I think in that case, they were guided by the fact that there was actually some evidence

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that the non-unit employees whose information had requested had engaged in similar misconduct under a policy that applied to both unit and non-unit employees.

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But the board does not explain or need to really explain if it were departing from precedent or anything in that, because it really wasn't departing from precedent to that extent, that when a union seeks non-unit employee information under a disparate treatment theory,

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The burden of proof established through a long line of US Postal Service cases that are board decisions, it has to show those two things.

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Well, that's why I asked you about, in a case involving your own client, where the board told your client what the standard was.

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What way are we to give to that?

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That's all I'm asking.

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I don't think that it deserves any particulars of deference.

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Even if the board says, here's our standard, all right, probability the information is necessary and relevant, citing ACME, citing what, Disneyland Park, Sands Hotel and Casino, very liberal discovery type standard, back to ACME and Disneyland Park.

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That's all I'm trying to understand.

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I get your argument in the brief that there are these other cases involving the US Postal Service, etc.

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But there's also this case involving your client on the very issue.

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Well, I think, Your Honor, that those standards that you have just read to me are a more generalized view of the analysis starting at the top that distills down to the very specific particularized type of showing.

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In other words, when I read your brief, you're saying that the board has a number of cases involving the Postal Service where the union

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request for information is not relevant, unless the union already has evidence that can prove its case.

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No, I don't go quite that far, Your Honor.

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Not quite, almost.

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Not quite that far.

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No.

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All right.

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No, falling.

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But my point is that in stating the standard in this case to your client, the union did not say that.

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I mean, the board did not say that.

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I'm just trying to understand where we are here on the law.

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It's your client.

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It's a request by the union for information.

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The board says, here's the standard.

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And it doesn't adopt all these postal service.

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It adopts ACME, Disneyland, et cetera.

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That's all I'm trying to understand.

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Where are we on the law here, as far as your client is concerned?

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obvious to you, and they're entitled to the information.

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Roger 2011 case, essentially the same case, very similar.

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You had already been told.

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So what's new here?

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What's new here, Your Honor, is that in that prior proceeding, the business agent had some objective factual basis for believing that supervisors, de Lorenzo and Busca, had engaged in the same kind of misconduct

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that the unit employee Mr. Madrid had engaged in.

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There was some, he actually had personal knowledge

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that de Lorenzo and Busca had been investigated for having tampered with equipment that did not belong to the company in relation to a gas leak at Montgomery and Carlisle.

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Mr. Madrid had been terminated, he was the unit employee, had been terminated for having tampered with equipment that did not belong to the company when he shut off service to a customer and ended up tampering with equipment that wasn't PNM's.

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So there, Mr. Tefoy, the business agent there, had some objective factual basis to support his request.

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I need to see if you're stating a test that requires the union to show, or the union to have the disparate treatment case and just request additional information to support it, as opposed to a test which is, these are similar situations.

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You can't do that.

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It's based on just mere suspicion or a theoretical interest in auditing or checking.

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Theoretical is precisely the same kind of work or same kind of situation.

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They can't seek that information.

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Well, that is called... It would be one thing if you say, we have employees, they're not managers, and they don't have that kind of training, but we really think that their horsepower is as good as your managers.

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We want to see what your managers are making.

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These people are doing essentially the same thing, and we want to see whether there is disparate treatment.

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to the board president that has made a distinction that the relevancy burden depends upon exactly what you're asking for and what your reason for asking for it is.

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And in the disparate treatment case, the burden is on the union to show there's a similar situation.

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There's two parts to that.

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It's more than simply showing that a common rule applies to both.

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You must have some objective factual basis to suspect reasonably

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that they have actually engaged in the same misconduct.

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Now, that doesn't mean you have to have all the facts.

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That doesn't mean you have to know everything to prove your case, but just some basis to believe, or at least at a minimum, as pointed out in the San Diego newspaper case, as pointed out in one of the board's cases, which I think was the Beth Abraham case.

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um... undertaken investigation at least make some effort don't just have a theory and server request because under those circumstances that is classified as a as a classic fishing expedition and it is a place in the law where we draw the line that and as as um Judge Rogers pointed out in reading that standard it talked about a probability so the the it's a low burden indeed it is

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But you must have some sort of factual basis to suggest.

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There's a probability.

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It may not be a high, but there's a possible, beyond a theoretical possibility, but at least a probability that if you provide that info, it will.

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In the case of the employee who was asked to submit a doctor's note, the question was, was this a new requirement?

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And she had been going to the doctor, apparently, and never been asked to supply a note.

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And so a grievance was filed, and the union was asking for information whether the same note requirement was being applied to non-unit employees.

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Now, in your view, that information would not be relevant, and it either would or wouldn't support a disparate impact claim, but first,

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The union must do a survey of the 1,200 non-working, non-unit employees to find out whether they've ever been asked to submit a doctor's note.

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No, I think that the union can take some minimal responsibility for an initiative to at least inquire.

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I mean, there are many avenues available to it.

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Sadly, the employee says it's none of your business.

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I mean, why should I say?

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I don't like the union.

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I haven't joined the union.

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I don't want to give up this information.

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The information is the information in the employer's control.

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Well, the problem is the medical thing really is cussed against you in the sense that the board case lawyer suggests, look, it's obvious to you why they need this.

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You lose.

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had never been.

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So they're now saying this is a new requirement.

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Have you imposed that new requirement on the non-unit people?

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That seems terribly relevant.

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Because if in the past there had been no requirement union or not, if there had been no requirement union, there definitely would not have been non-unit.

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So they're saying there's a change.

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Did you do the same thing

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terribly relevant.

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Well, I think there's a distinction between if the evidence exists, whether it's relevant, and what the burden is, however, to show that your request is supported and it's not just a fishing expedition.

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And that's that distinction.

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I mean, labor law certainly

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tries to strike a delicate balance between interests of employees and unions and employers.

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And it has done that with respect to request for information by recognizing this dichotomy.

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And while there's really no burden with respect to unit employee information, there is a slight burden, and it's not much.

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But arguably, it could be relevant if it existed.

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You didn't argue that in response to the union's request and oil chemical.

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means that we can't take that into account.

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And here, management would either say yes or no.

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there was no evidence presented at the hearing that management ever relied on it, as opposed to some of the cases that are cited in the briefing where management made the information relevant because it said, well, in making that determination with respect to what discipline was going to be issued to the unit employee,

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The evidence in a couple of cases recited in the briefing was that management took into account what discipline had been issued to others.

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See, I understand cases where the facts were such that there was a brawl with supervisors, so they knew that supervisors were involved, all right?

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This is something where they don't know.

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I understand.

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And it's not a situation where the employer has to do a six-month study and hire experts.

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It's just do you require this or not?

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Well, I think the request went much further than that.

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I think they wanted it to compile all this information that

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that said, how many times has a non-union employee asked for time off to go to a doctor's appointment?

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How many times in response to that has a supervisor asked for a note?

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But as I understand it, I get your point.

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In other cases I've seen, these requests have been made, and management and labor have sort of worked out what really needs to be revealed, as opposed to a six-month study

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You know, it's just a yes or no.

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And presumably management knows whether now they have a policy to require notes for medical leave that's under three hours.

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Well, the request was actually... You don't see any difference here.

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The request was actually... The request for the medical note with respect to Ms.

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Plant was actually consistent with the policy as written.

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So it wasn't... She was saying, I've never personally been asked for one before.

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But it was consistent with the policy.

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The policy is written, said you have to give a note every time you go to a doctor.

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No, the policy is written, provided that if an employee had a low PTO balance, was missing a lot of time for more because of doctor's appointments.

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At the supervisor's discretion, at some point, it was up to them to decide, maybe I should ask for a doctor's note for this absence because this employee's got

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low balance and they've had a lot of absences and that it was so it was applied consistently as written so there wasn't anything suspicious in that regard because on its face it was applied consistent with the policy she simply said my experience has been I haven't been asked before I'm out of time all right we'll give you a couple minutes in reply thank you mr. Jost

[00:20:48] Speaker 00:
Good morning, Your Honors.

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May it please the Court, my name is Micah Jost for the NLRB.

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I'd like to begin by addressing Judge Rogers' first question regarding the 2011 decision in order, which was enforced by the Tenth Circuit.

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The facts of that case, I believe, are precisely on point with regard to one of the Union's information requests in particular.

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That's the request for the discipline, if any, that was administered to a supervisor, Rex Foss, based on his involvement in the same

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gas leak that the other two individuals, De Lorenzo and Buza, had been involved in.

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Buza, excuse me.

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The record sites I would direct the court to for that are Joint Appendix 455 and 56, which is where the union requested that information and explicitly referenced the other supervisors and made clear it was dealing with the same issue and the same grievance pertaining to the same individual, Mr. Madrid.

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Right, but I think counsel might respond that there they knew the supervisor was involved in this brawl, so they had some objective evidence.

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What do you say in response to her last point that the policy here was consistently applied?

[00:22:06] Speaker 00:
I think the union was entitled to evaluate in particular because it knew that Ms.

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Plant had not been asked to provide doctor's notes in the past.

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It had at least some reason certainly to think that this was a new or not consistently applied rule.

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And the request that it made was a request that was narrowly tailored to only get information that would show how the policy had been applied.

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And that's the key difference between the case we have here

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and the case that the company relies on principally, which is the Postal Service case from 1993, I believe.

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In that case, what the union was requesting was records in an open-ended fashion.

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They were asking for all of the leave records, all of the disciplinary records of certain individuals, and they simply had no reason to know whether those records, that broad range of information, whether there would be anything relevant there.

[00:23:01] Speaker 00:
What the union requested here in each instance was only information that would show how policies that had been applied to unit employees, how those policies had been applied to other employees as well.

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Those pertained to specific pending grievances.

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that the union had.

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I believe there's an error in the company's reply brief where it suggests that there was no grievance in Ms.

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Plant's case.

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There was.

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It's referenced at transcript pages 88 and Joint Appendix 448.

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It's referenced in the information request itself.

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So what this comes down to is

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one line of cases, which includes Holiday Inn, cited in our brief, and the 2011 board decision enforced by the 10th Circuit.

[00:23:46] Speaker 00:
In those cases, where you have a request for information about how a policy has been applied to various people and the only information the company would have to provide is

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examples of where that policy has been applied that would show whether it's been done in an even-handed manner or not.

[00:24:02] Speaker 00:
That's one world of request.

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As the company noted, as opposing counsel said a moment ago,

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quote, the relevancy burden depends on exactly what you're asking for.

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And the board agrees.

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Where you have the other line of cases is in the Postal Service context, where the union is asking to be able to delve into a broad range of records that may or may not show any applications of the same policy.

[00:24:31] Speaker 00:
I'd also like to note with regard to the medical leave and the paid time off, the plant information request

[00:24:40] Speaker 00:
as I think was brought out in the questioning earlier, it would be unfeasible and very problematic for the union to try to prove its case or to obtain whatever heightened level of evidence the company believes it would have to have by trying to interview

[00:25:00] Speaker 00:
any or all of the 1,200 non-unit individuals.

[00:25:03] Speaker 00:
It's not clear how many of those individuals the company thinks the union would have to talk to.

[00:25:08] Speaker 00:
Some of them could be supervisors, which means they wouldn't share the same Section 7 rights to cooperate with the union, and it would place them in a difficult position of essentially a conflict of interest.

[00:25:18] Speaker 00:
Do I provide information that would assist the union in processing grievance where my employer has refused to provide that information?

[00:25:25] Speaker 04:
So basically, are you taking the position that

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Whether the union has met its burden to show relevance because it's a contextual determination necessarily invokes the board's expertise and there is very little room left for the court.

[00:25:52] Speaker 00:
I think that's certainly the case, Your Honor.

[00:25:53] Speaker 04:
Well, I'm trying to understand, because you have this line of cases that say you need some objective evidence.

[00:25:58] Speaker 04:
And I thought that's what counsel is talking about.

[00:26:00] Speaker 04:
It's not enough that this one lady, this one employee, was asked for a note when the manual itself said, you know, if you're never at work because you're always on medical leave, we're going to require you to give us a note, because we're somewhat suspicious, basically.

[00:26:22] Speaker 00:
Right.

[00:26:23] Speaker 00:
And if I understand your Honor's question, my first response is that I think it's clear from the cases we cite in our standard review that the Board, in the first instance, is responsible for marking out what constitutes good faith bargaining and the duty to bargain, and that includes determining what information is relevant.

[00:26:40] Speaker 00:
The other response I have is that

[00:26:43] Speaker 00:
As I noted, the board has different lines of authority here.

[00:26:46] Speaker 00:
It has not departed from precedent without an explanation, as the company suggests.

[00:26:51] Speaker 00:
Rather, we point to cases like Holiday Inn and the 2011 board decision.

[00:26:57] Speaker 00:
In this case, excuse me, with this same employer.

[00:27:01] Speaker 00:
And those are cases that establish the rule that's set forth in our brief, that when you have the same policy.

[00:27:06] Speaker 04:
I understand in your brief you've addressed this, but how about the board?

[00:27:10] Speaker 04:
Did it address?

[00:27:12] Speaker 00:
I think that the rule can be fairly drawn, the inference as to the rule that the board is applying can be fairly drawn from the facts in each case.

[00:27:20] Speaker 00:
It is a fact-dependent analysis.

[00:27:23] Speaker 00:
Relevancy always depends on the facts of the case, and it depends on the nature of the request that the union is making.

[00:27:30] Speaker 00:
So when you look at certain cases that display certain facts and others that are different, I think the board is entitled to look at which cases are most on point and to draw those distinctions in accordance with its own precedent.

[00:27:46] Speaker 04:
I understand your last point, but I guess counsel's argument, one of the arguments, is they didn't distinguish.

[00:27:56] Speaker 04:
They just ignored.

[00:27:58] Speaker 00:
Well, I don't think they ignored.

[00:28:00] Speaker 00:
As I understand it, Your Honor, counsel's argument is that the board in this case departed from precedent without recognizing the other cases, specifically the Postal Service cases.

[00:28:13] Speaker 00:
What happened, though, is that the board followed a different line of precedent, or its decision was well-encompassed by a prior line of precedent that's distinct from the one that the company relies on.

[00:28:23] Speaker 00:
The board did cite several of the Postal Service cases, so it was fully aware of them.

[00:28:28] Speaker 00:
It simply decided the case in accordance with whether or not the Holiday Inn case, for example, was cited.

[00:28:36] Speaker 00:
It's well-established authority from the 1990s within the same era that these Postal Service cases come from.

[00:28:44] Speaker 00:
And I think it's consistent in particular with the Postal Service case from 2000, which I think is it 332 and LRB 635, in which the Board did find that a request for information

[00:28:58] Speaker 00:
was relevant not based on the union having some sort of reason for believing that there had been disparate treatment, but rather simply because the union had seen an individual, a supervisor, arriving late and therefore had reason to think that the same policy had been applied.

[00:29:16] Speaker 00:
So the union knew that person was subject to a policy, had reason to think that the policy had been applied.

[00:29:22] Speaker 00:
Therefore, it was entitled to an open-ended inquiry into that individual's records.

[00:29:27] Speaker 00:
Here, again, the union knew everyone was subject to the same policy, and its request was targeted to only reveal applications of that policy.

[00:29:37] Speaker 00:
I'd like to move for just a moment to address an issue that's raised in the company's reply brief, which is mootness that pertains to the union access issues that the company has reached a prospective arrangement with the union on.

[00:29:54] Speaker 00:
I think the mootness argument there is

[00:29:56] Speaker 00:
clearly addressed and resolved by the Supreme Court's decision in Mexia textile mills, which is 339 U.S.

[00:30:02] Speaker 00:
563 from 1950.

[00:30:06] Speaker 00:
That case makes it clear that even if the parties have reached some sort of agreement or even if the company asserts that it has remedied the unfair labor practice or changed its ways in some way,

[00:30:19] Speaker 00:
The board's ordering poses a continuing obligation and is entitled to have the weight of judicial enforcement behind that order.

[00:30:27] Speaker 00:
In this case, there's of course a notice posting which would inform employees that the changes have been rescinded and the employees are entitled to have their Section 7 rights vindicated in that way.

[00:30:40] Speaker 00:
I'd also like to briefly turn to the unilateral changes that were made to the informal step, and there I would simply note that a great deal of time is spent in the company's reply brief on the concept of contract coverage.

[00:30:55] Speaker 00:
That argument is clearly barred by Section 10E of the Act because it was never made to the Board.

[00:31:01] Speaker 00:
Indeed, it's difficult to even

[00:31:02] Speaker 00:
discern from the passing references in their opening brief and that's why neither the board's decision addresses it nor does our responsive brief.

[00:31:12] Speaker 00:
What is clear with regard to the unilateral changes is that the parties had a long-standing practice dating back to approximately 1977 of handling the informal step in a particular way.

[00:31:26] Speaker 00:
The company's own witnesses admitted that it was dissatisfied with the way that that practice was proceeding and that it wanted to institute this new training in order to make the process function better.

[00:31:37] Speaker 00:
Those admissions are at transcript pages 974, 1035, and 1109.

[00:31:46] Speaker 00:
The company seems to suggest that simply because it had what it thinks is a colorable interpretation of

[00:31:53] Speaker 00:
long-standing contract language that it was entitled to cast aside the party's past practice and simply implement a new interpretation at will, as if the parties were riding on a clean slate.

[00:32:05] Speaker 00:
That is, of course, not the law.

[00:32:07] Speaker 00:
Past practice is a legal doctrine that has independent dignity and significance as a matter of law.

[00:32:15] Speaker 00:
An employer is not entitled to depart from past practice simply on the basis of a newly arrived at interpretation of old language.

[00:32:22] Speaker 00:
The cases we cite in our brief that are particularly pertinent, I think, are Northeast Oklahoma City manufacturing from the 10th Circuit and Granite City Steel, which is a board case in the 10th Circuit.

[00:32:36] Speaker 00:
Northeast Oklahoma City manufacturing case.

[00:32:39] Speaker 00:
There was a contract provision that required monthly bonus payments.

[00:32:43] Speaker 00:
There was also a past practice that had arisen of making those payments in the second week of the month.

[00:32:50] Speaker 00:
So even though there was a

[00:32:52] Speaker 00:
contractual provision that could have been interpreted in any number of ways, there was a clear past practice, and the company violated Section 8A-5 when it departed from that.

[00:33:02] Speaker 02:
Is there a grievance procedure into which that claim could have been processed?

[00:33:07] Speaker 00:
In the Oklahoma City case?

[00:33:08] Speaker 00:
No, in this case.

[00:33:09] Speaker 00:
In this case, the parties, of course, do have Article 10 of the Collective Bargaining Agreement, which sets forth the agreements procedure.

[00:33:18] Speaker 00:
To my knowledge, neither party has ever attempted to put the unilateral changes through that process.

[00:33:27] Speaker 02:
Did the company argue below that this was an agreements matter and it should have been pursued there?

[00:33:32] Speaker 00:
To my knowledge, deferral has never been argued in this case with regard to those issues.

[00:33:36] Speaker 04:
What has never been argued?

[00:33:38] Speaker 00:
Deferral, Your Honor.

[00:33:39] Speaker 00:
All right.

[00:33:39] Speaker 00:
The proposition that the company and the union should have resolved the unilateral changes through the grievance procedure instead of through board charges.

[00:33:51] Speaker 00:
I'd like to finally briefly address the materiality issue that the company hasn't

[00:33:59] Speaker 00:
addressed at oral argument yet, but in that.

[00:34:02] Speaker 00:
with regard to their attempt to separate out the second supervisor requirement from the other requirements, this court's decision in microimage, I think, is particularly instructive.

[00:34:13] Speaker 00:
In that case, the court addressed a brief two-day change to lunch times, and it recognized that that change might be inconsequential in isolation, but it had to be addressed in the context of the other unfair labor practices that the company was engaging in.

[00:34:29] Speaker 00:
In this case, similarly, where you have

[00:34:32] Speaker 00:
The same training, which is directed at making the same changes to the same grievance process, it's implemented by the same supervisors, and affects the same employees, there is precisely the kind of nexus that would require, or that would permit the board to reasonably view these changes in conjunction, and that's what it did in this case.

[00:35:02] Speaker 00:
unless the court has any other questions.

[00:35:03] Speaker 04:
I have one question, just so I'm clear.

[00:35:06] Speaker 04:
Your brief at page 38 says, and this is back to the first issue about whether the union must already possess evidence of disparate treatment before it may request information relevant.

[00:35:24] Speaker 04:
You say notably the company never raised this objection at the time the union made its information request.

[00:35:30] Speaker 04:
And so you're citing, I think it's oil.

[00:35:33] Speaker 04:
No, you're citing Holiday Inn.

[00:35:40] Speaker 04:
That's a board case.

[00:35:41] Speaker 04:
And then later I think you cite oil chemical.

[00:35:45] Speaker 04:
So does that mean that even if the company raised it in objections to the ALJ's decision, the matter is not properly before this court?

[00:36:00] Speaker 00:
I believe that the language that we cite from Holiday Inn noted that the objection was raised somewhat belatedly, and I think that that went to perhaps the board's analysis of whether it was a real matter of substance.

[00:36:17] Speaker 00:
Certainly with regard to burdensomeness, the case that we cite from this court, the Okaw case,

[00:36:22] Speaker 00:
with regard to burdensomeness and confidentiality, any of those considerations had to be raised to the union.

[00:36:29] Speaker 00:
Here, the objection that the company raised in each instance was simply arguing that the information requested was not relevant.

[00:36:40] Speaker 00:
I don't think they articulated precisely to the union that the union, in the company's view, lacked sufficient evidence of disparate treatment.

[00:36:49] Speaker 00:
I think their position was these individuals are not similarly situated because they're supervisors or because they're non-union employees.

[00:36:57] Speaker 00:
So I think the shifting arguments would certainly go to the weight or the substance of the company's defense in that regard.

[00:37:05] Speaker 00:
I don't think that the board

[00:37:09] Speaker 00:
To be entirely candid, I don't think that the board in Holiday Inn refused to consider the argument simply because it hadn't been made in those precise terms to the union at that time.

[00:37:19] Speaker 04:
So it's probably before the court.

[00:37:23] Speaker 00:
I believe it was preserved in the arguments to the board, and I don't think that the board— I just wanted to be clear that I understood what that statement meant.

[00:37:32] Speaker 04:
Thank you.

[00:37:34] Speaker 04:
All right.

[00:37:35] Speaker 00:
If the court has no further questions, then we would simply ask that the court enforce the board's order in full.

[00:37:40] Speaker 05:
Thank you.

[00:37:43] Speaker 05:
Does Ms.

[00:37:43] Speaker 05:
Goble have any time?

[00:37:44] Speaker 05:
Why don't you take two minutes?

[00:37:47] Speaker 05:
Two minutes.

[00:37:48] Speaker 05:
Thank you, Your Honor.

[00:37:52] Speaker 03:
With respect to what the union can do to investigate,

[00:37:57] Speaker 03:
It can ask its own membership, even if it doesn't want to talk to the other employees.

[00:38:00] Speaker 03:
And the other thing to recall is in all of these use of postal service cases, I mean these employees are not segregated from each other.

[00:38:06] Speaker 03:
So unit employees and non-unit employees work around each other.

[00:38:09] Speaker 03:
They see each other.

[00:38:10] Speaker 03:
And they observe each other.

[00:38:12] Speaker 03:
And it was, in those cases, that was the only burden that was placed on the union in those cases was, have you seen or heard anything?

[00:38:19] Speaker 03:
And there's plenty of opportunity via email to all its membership.

[00:38:23] Speaker 03:
There are Bolson boards throughout the company where they post information.

[00:38:27] Speaker 03:
They are permitted to put flyers in mailboxes.

[00:38:32] Speaker 03:
So they could have made an inquiry, has anyone observed or seen something like this, in order to try and find out if they had similarly situated

[00:38:39] Speaker 03:
and non-union employees based upon conduct.

[00:38:43] Speaker 03:
With respect to the CDA issue, the interpretation.

[00:38:46] Speaker 04:
But that's my whole point.

[00:38:47] Speaker 04:
You're positing one big happy family where we all cooperate and get along with each other.

[00:38:55] Speaker 04:
Who knows if that's true between union and non-union employees.

[00:39:00] Speaker 03:
What I'm positing to support is they ask their own membership.

[00:39:04] Speaker 03:
Their own membership.

[00:39:05] Speaker 03:
It's hundreds of members.

[00:39:10] Speaker 03:
So I understand your point, and I understand your point, that non-unit personnel may not want to take their time to respond.

[00:39:18] Speaker 03:
But they have hundreds of their own members who they could easily reach out to and ask, what have you experienced?

[00:39:24] Speaker 03:
What have you observed?

[00:39:26] Speaker 03:
With respect to the CDA issue, this court's review is day note.

[00:39:33] Speaker 03:
And on that point, the company did, in its exceptions, in its brief in support, and in the reply brief,

[00:39:39] Speaker 03:
point out that the court or that the board did not look to plain language first for interpreting the contract.

[00:39:49] Speaker 03:
And if you take the definition of grievance, which is a dispute between the parties with respect to the interpretation and application of provisions of this agreement.

[00:40:01] Speaker 03:
Article 8.

[00:40:03] Speaker 03:
Article 8.

[00:40:05] Speaker 03:
And you put that, yes, and you put that then into the language that describes what the informal process is supposed to involve.

[00:40:13] Speaker 03:
And then the plain language tells you that the informal process, which requires that the grievant take their grievance up with the supervisor.

[00:40:22] Speaker 04:
I thought the evidence was Cox had.

[00:40:25] Speaker 03:
I'm talking about the second issue with respect to just what the informal process should involve.

[00:40:33] Speaker 04:
And the argument here, you seem to think that past practice is not an independent legal doctrine, but it's just parole evidence?

[00:40:43] Speaker 03:
I think in this particular circumstance, the Board did the analysis backward.

[00:40:47] Speaker 04:
According to the law... You just told us it's de novo, so we're making the... Correct.

[00:40:52] Speaker 03:
And the first place you look is plain language.

[00:40:54] Speaker 04:
And had they looked at plain language... And what about past practice?

[00:40:57] Speaker 03:
Past practice would become relevant if there was ambiguity.

[00:41:01] Speaker 04:
But in the circumstances here, if you look at the plain language... And so your client says, I have a plausible interpretation.

[00:41:08] Speaker 03:
I have a plausible interpretation under the plain language of this, of the contract.

[00:41:12] Speaker 04:
Plausibility is normally a Chevron step two argument, not a step one argument.

[00:41:18] Speaker 03:
Well, we certainly construed it as a recognition by the board that both sides had a reasonable interpretation of the plain language.

[00:41:26] Speaker 03:
I mean, they've been doing this for decades.

[00:41:30] Speaker 04:
Everybody knows what this first step is.

[00:41:35] Speaker 03:
Well, I think what's important is what was noted by both parties.

[00:41:40] Speaker 03:
Oh, I'm sorry, your honor, I'm out of time.

[00:41:42] Speaker 03:
Go ahead.

[00:41:43] Speaker 03:
What was noted by both parties at the administrative hearing was what is the purpose?

[00:41:49] Speaker 03:
And I think you first looked at plain language, but if you want to know what does it mean, the other thing you're trying to discern is what was the party's purpose?

[00:41:57] Speaker 03:
What was their intended purpose in putting this language in their contract in the first place?

[00:42:02] Speaker 03:
And what was remarkable was at the hearing.

[00:42:04] Speaker 03:
Both parties agreed and described it as a process that's intended for them to have a discussion about the problem in efforts to try to resolve it at the discussion level.

[00:42:16] Speaker 03:
And yet, the company was found to have violated the act because it anticipated and expected that in accordance with that process, the union personnel would identify the articles of the agreement that had been violated and explain the violation.

[00:42:32] Speaker 04:
But they wanted to add things.

[00:42:36] Speaker 03:
And we're not disputing those other things other than, I said, the secondary issue with respect to the second supervisor.

[00:42:41] Speaker 03:
I know.

[00:42:42] Speaker 04:
The board made some findings.

[00:42:45] Speaker 03:
And those have not been appealed with respect to the time frame or when the supervisor had to sign and receive.

[00:42:52] Speaker 03:
Is that what your honor is asking about?

[00:42:54] Speaker 04:
No, I'm asking about you say there isn't substantial evidence to support the board's findings that these were material and significant changes.

[00:43:03] Speaker 03:
Well, there's no substantial, if it was, if the plain language required that the informal process would include an identification of the CBA articles that had been violated and how they had been violated, then the company hadn't unilaterally changed anything.

[00:43:23] Speaker 03:
It was just trying to adhere to the process that both parties had envisioned.

[00:43:28] Speaker 02:
There's a lot of board history that's saying past practice can support a claim

[00:43:55] Speaker 02:
practice, cases are there.

[00:43:58] Speaker 02:
It clearly affects conditions of employment.

[00:44:01] Speaker 02:
You've changed something, and the board says that's not the way it's ever been.

[00:44:05] Speaker 02:
You have to talk to them first.

[00:44:07] Speaker 03:
Well, and I'll confirm that the company below did not raise the deferral issue.

[00:44:12] Speaker 03:
That is correct.

[00:44:14] Speaker 03:
But I think there's a difference between a past practice that's extra contractual and some of the cases that are relied upon.

[00:44:20] Speaker 03:
are those classic line of cases, the Board of Sites and its briefing, where you have something on which the CBA is silent.

[00:44:27] Speaker 03:
And obviously a past practice that can become a term and condition of employment, even though it's not covered by the CBA.

[00:44:34] Speaker 03:
And it may require then, of course, bargaining before it can be changed.

[00:44:38] Speaker 03:
I find those cases to be distinguishable to this situation, because the case law is clear that the approach really should be first look to the plain language.

[00:44:47] Speaker 03:
And if the employer's interpretation is reasonable under that plain language, and that's the company's position, the definition of grievance when you insert it into the informal discussion process tells you what you should be talking about, which is any dispute between the parties regarding interpretation.

[00:45:03] Speaker 02:
If it was that clear, there wouldn't have been the practice.

[00:45:05] Speaker 03:
Excuse me?

[00:45:06] Speaker 02:
If it was that clear, there wouldn't have been the practice.

[00:45:10] Speaker 03:
Well, I think the record reflects.

[00:45:11] Speaker 02:
I mean, it doesn't make sense.

[00:45:22] Speaker 02:
The company wants to change it.

[00:45:24] Speaker 03:
Well, conceptually, Your Honor, with respect to what is the evidence that goes most directly to the point trying to be determined, which was what was the party's intent?

[00:45:36] Speaker 03:
And that's where the evidence was uniformed.

[00:45:38] Speaker 03:
When both sides were asked, what was your intent when you entered into this contract, this contract with this provision, what did you intend this informal process to encompass?

[00:45:50] Speaker 03:
And both parties said it was an opportunity to sit down and discuss the problem.

[00:45:55] Speaker 03:
And the stewards said, and I informed myself on that as to what provisions of the article have been violated and what the problem is so we can have that discussion and see if we can work it out at that level.

[00:46:06] Speaker 03:
And yet, they took a self, I would call it a self-contradictory position, but that doesn't really require us to explain the problem.

[00:46:18] Speaker 03:
devolved into a practice that the company thought both sides aren't really doing a good job of this.

[00:46:25] Speaker 03:
I mean, the point of the whole process is can we achieve peace here on this issue with the most effective resolution for both sides, say?

[00:46:35] Speaker 03:
Can we sit down and discuss it before it has to escalate to a more protracted affair, which would be a panel?

[00:46:41] Speaker 03:
and maybe even going to arbitration, let's have a chance to talk about it first.

[00:46:46] Speaker 04:
Written charges, second supervisor.

[00:46:52] Speaker 04:
I mean, that's a more formal process.

[00:46:54] Speaker 04:
I mean, those are the board's findings.

[00:46:56] Speaker 04:
That's all I'm getting at here.

[00:46:59] Speaker 03:
Are there any further questions I can address for the court?

[00:47:02] Speaker 03:
I don't think so.

[00:47:03] Speaker 03:
Thank you.