[00:00:03] Speaker 01:
Case number 14-1095, Romero Lopez et al.

[00:00:06] Speaker 01:
Petitioners versus National Labor Relations Board.

[00:00:09] Speaker 01:
Mr. Solon for the petitioners, Mr. Heller for the respondent.

[00:00:38] Speaker 03:
Mr. Solem, good morning.

[00:00:41] Speaker 04:
It's the court.

[00:00:42] Speaker 04:
Good morning.

[00:00:42] Speaker 04:
My name is Aaron Solom.

[00:00:43] Speaker 04:
I represent Romero Lopez and 31 other employees at Latino Express.

[00:00:47] Speaker 03:
All right.

[00:00:47] Speaker 03:
Now, before you start, tell us why there's anything left of your petition.

[00:00:53] Speaker 04:
The board and Lopez are in agreement that this petition is not moved because Lopez can still be awarded relief.

[00:01:02] Speaker 04:
Namely, the union is back in power, but it's only through a settlement agreement that the employer signed last November.

[00:01:10] Speaker 04:
But the board admits that this court's decision on whether or not the petition was valid and whether or not the petition was collected during the year will control whether or not that settlement agreement remains.

[00:01:23] Speaker 04:
So the board, moving back to the issue of whether or not the petition is valid.

[00:01:31] Speaker 02:
Can I just clarify what your answer was there?

[00:01:33] Speaker 02:
So is your position that

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If you were granted intervention, would then have to go back to the board, and the board would have to throw out the settlement?

[00:01:44] Speaker 04:
Yes, that's our position.

[00:01:46] Speaker 04:
That's the board's position as well, is that this case will control over the settlement whether or not the union is a valid union.

[00:01:52] Speaker 04:
Because if petitioners are correct that this is a minority union, which it is if you look at the joint appendix and look at the signatures collected, 66% of the employees stated they were against the union.

[00:02:04] Speaker 04:
But merely because of a technical error on the part of the employer, because we were denied intervention, this was declared a minority union.

[00:02:11] Speaker 04:
So if it goes back and this is a minority union, this board can enter into a settlement agreement that allows a minority union to exist.

[00:02:21] Speaker 04:
It would be allowed to do by settlement agreement what it couldn't do under the statute, as the Supreme Court recognized in Lady Garment Workers.

[00:02:31] Speaker 02:
I thought there was precedent that was fairly settled that interveners can't intervene just to upset a settlement agreement between parties.

[00:02:39] Speaker 04:
We aren't intervening just to upset the settlement agreement.

[00:02:42] Speaker 04:
We tried to intervene before the board.

[00:02:43] Speaker 02:
No, I can't believe that, but at this point, that would be the only... You haven't intervened yet because you weren't allowed right there wrongly.

[00:02:48] Speaker 02:
If you were to now, you're telling us that would be the effect.

[00:02:53] Speaker 04:
In fact, the Third Circuit's decision in the SEC case, which we cited in our reply to the board's petition to voluntarily dismiss the employer's appeal in its enforcement order, says that when there's a question of intervention, the parties can't settle to moot that case when the issue of the intervention is on appeal, because we were proper parties before the board.

[00:03:18] Speaker 04:
And we're proper parties before the board because the employees, the core right protected by the National Labor Relations Act is the right of employees to either choose or reject union representation.

[00:03:28] Speaker 02:
We've had recent precedent in this court in Idaho Conservation League.

[00:03:34] Speaker 02:
not allow an intervention because the aim of it was to stop the settlement?

[00:03:41] Speaker 04:
Well, under the statute, the settlement is trying to accomplish, though, what is contrary to the act.

[00:03:46] Speaker 04:
And I'm not aware of that case.

[00:03:51] Speaker 04:
But the board and I are both in agreement, or the board and the petitioners are in agreement that the settlement will control, and it will control the legal rights of the board, it will control the legal right of the employer.

[00:04:01] Speaker 02:
I'm sorry, yeah, the settlement will have control.

[00:04:04] Speaker 04:
Correct.

[00:04:04] Speaker 04:
No, no, this court's decision will control whether the settlement remains.

[00:04:08] Speaker 04:
This court's decision will decide whether or not interveners or the petitioners, the employees, were wrongly denied intervention.

[00:04:14] Speaker 04:
And it will decide whether or not the petition was actually valid, because it was collected merely 20 days before the end of the certification year.

[00:04:23] Speaker 03:
I'm confused, because there are a bunch of

[00:04:27] Speaker 03:
case numbers here in the caption.

[00:04:31] Speaker 03:
Your settlement agreement settles only the allegations in the above captioned cases.

[00:04:35] Speaker 03:
One of them is 13 CA 079 765, which was

[00:04:43] Speaker 03:
the ULP charge against Latino Express for the withdrawal of the recognition of the union, which was based on the de-certification petition.

[00:04:57] Speaker 03:
So how is that still a live issue?

[00:05:00] Speaker 03:
That is, the validity or not of the de-certification.

[00:05:04] Speaker 03:
The ULP, based on that, has been withdrawn or has been settled.

[00:05:09] Speaker 04:
Well, the UOP has been withdrawn, but the board's order from this case still remains.

[00:05:15] Speaker 04:
And if the board's order is overturned, we would go back and we would determine whether or not the petitioner's petition was actually valid.

[00:05:22] Speaker 04:
The employer, now it would be an odd procedural position because generally the employer is against the board.

[00:05:27] Speaker 03:
But the allegation in the case caption I just read was a UOP based on the withdrawal of recognition

[00:05:37] Speaker 03:
of the union which was based on the decertification petition.

[00:05:41] Speaker 03:
So that's been settled.

[00:05:44] Speaker 03:
This has settled that allegation.

[00:05:47] Speaker 04:
It's settled by the employer.

[00:05:49] Speaker 04:
Yes.

[00:05:49] Speaker 03:
And the board.

[00:05:50] Speaker 04:
And the board.

[00:05:51] Speaker 04:
But the board admits the union and the employer both agreed in their motion that the petitioner's resolve is still controlled.

[00:06:01] Speaker 02:
Well, even if your petition, I'm sorry.

[00:06:04] Speaker 02:
Even if your petition, let's just assume your petition were valid for purposes of this question, could not an employer still be guilty of unlawfully withdrawing recognition of the union and the way it responded to that petition?

[00:06:23] Speaker 04:
No, no, because there's no allegation that it did anything wrong besides rely on a petition because it was only circulated 20 days before the end of the year.

[00:06:32] Speaker 04:
So that's the only question on the validity of the petition, and on terms of the legal validity of the petition.

[00:06:38] Speaker 04:
But at the actual trial that the ALJ held, the employer only didn't even attempt to validate the signatures.

[00:06:44] Speaker 04:
In fact, it was the general counsel that validated only 20 of the 54 signatures.

[00:06:49] Speaker 02:
And so those two questions.

[00:06:51] Speaker 02:
Maybe I'm misrecollecting this, that there are questions about whether, given everything else that was going on in the case, it was appropriate, the improper bargaining.

[00:07:00] Speaker 02:
Is your question about paint?

[00:07:03] Speaker 02:
My question is, in this case, even assuming the petition signatures were valid,

[00:07:07] Speaker 02:
Could the board have made a showing that the withdrawal was improper because there had been lack of good faith bargaining?

[00:07:15] Speaker 02:
There was an avenue to refer the petition or for you to send the petition to the board.

[00:07:21] Speaker 04:
The board, the ALJ on page 13 of the decision that's at Joint Appendix 347,

[00:07:27] Speaker 04:
says that the GC's argument on taint is a thin read, and he made no finding on taint.

[00:07:34] Speaker 04:
And he said, in fact, there's no evidence of any taint, because the employer ULPs didn't occur until after the petition was collected.

[00:07:42] Speaker 04:
So it's our position that the employer ULPs have no bearing on this.

[00:07:45] Speaker 02:
I know, but the brawl of recognition occurred after that was potentially tainting events.

[00:07:50] Speaker 04:
But the signatures were not tainted.

[00:07:52] Speaker 04:
The signatures were not tainted because the ULPs occurred after.

[00:07:55] Speaker 02:
I'm talking about tainting

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withdrawal of recognition by the employer.

[00:07:59] Speaker 04:
And I'm saying that the board concedes that it doesn't matter.

[00:08:02] Speaker 04:
That the only reason the ALJ even reached the question of validity is because the later ULPs do not concern and do not undermine the petition, because the petition was collected before they occurred.

[00:08:15] Speaker 04:
So there's no tainting of the showing of interest.

[00:08:21] Speaker 04:
And generally, because there's no tainting of the showing of interest, it still remains a valid petition.

[00:08:26] Speaker 00:
If I could move, can you just before you move on, can you just walk through just step by step your best case scenario?

[00:08:33] Speaker 00:
So meaning you get to the merits, you prevail.

[00:08:38] Speaker 00:
There is this agreement that has been entered into.

[00:08:41] Speaker 00:
What happens?

[00:08:42] Speaker 04:
Right.

[00:08:43] Speaker 04:
The best case scenario is this would be returned to the board.

[00:08:46] Speaker 04:
We would be granted intervention.

[00:08:49] Speaker 04:
Once we're granted intervention, we would be able to validate the signatures and say these are proper signatures.

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And at that point, the union would be a minority union.

[00:08:57] Speaker 04:
The withdrawal from 2012 would be an effect in bargaining that is going on now between the employer and the union would end, because it is a minority union.

[00:09:08] Speaker 00:
And what happens with this agreement that's been entered into in that best case scenario?

[00:09:12] Speaker 04:
To the unfair labor practices that deal with withdrawal, that would be mediated.

[00:09:17] Speaker 04:
But to the other unfair labor practices that have nothing to do with this case, those would remain, the board's remedies would remain in those cases.

[00:09:24] Speaker 02:
Could imposition of, I guess what you call imposition, having the union stay in place be a remedy for the other?

[00:09:33] Speaker 02:
a proper remedy for the other unfair labor practices that were found here?

[00:09:36] Speaker 04:
No, because it's a minority union.

[00:09:38] Speaker 04:
Because the showing of interest clearly establishes that it's a minority union.

[00:09:41] Speaker 04:
And that remedy would go against the clear purpose of the act.

[00:09:45] Speaker 04:
It would go against the Supreme Court's decision in Lady Garment Workers, where they tried to reimpose a union on a runaway shop.

[00:09:51] Speaker 02:
Could the board not find that the other improper practices undertaken by the employer

[00:09:59] Speaker 02:
could have affected or make it an improper time to evaluate whether a petition is proper or not because the union was so, I'm just assuming everything was so hobbled by dealing with an employer who was engaged in a lack of good faith bargaining, came up with that Drivers Protection Act, changing terms without that.

[00:10:20] Speaker 02:
And so imagine there was no question about the withdrawal, it just wasn't in the case.

[00:10:24] Speaker 02:
couldn't there have been a remedy, the same remedy imposed for those unfair labor practices?

[00:10:30] Speaker 04:
No, because if there was no withdrawal in the case, there would be no need to re-recognize the union.

[00:10:35] Speaker 04:
But the central purpose of... Is there board law that says that?

[00:10:38] Speaker 02:
I guess my understanding is that you could...

[00:10:41] Speaker 02:
have this exact same remedy for those other labor practices?

[00:10:44] Speaker 04:
Oh, well, they can impose a bargaining order.

[00:10:45] Speaker 04:
But the question in this case is whether a bargaining order is improper when it's a minority union.

[00:10:50] Speaker 04:
And when the minority union was established as a minority union, based on a petition that the board agrees is untainted.

[00:10:55] Speaker 04:
And the board, the LGA even concedes that the petition is only considered because ULPs have no taint.

[00:11:04] Speaker 04:
You know, generally in an election, the board allows or imposes a bargaining order and they stop the election from occurring to remedy those unfair labor practices for the purpose of restoring laboratory conditions in order for the majority to speak.

[00:11:22] Speaker 04:
But here the majority has already spoken.

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So there's no need.

[00:11:26] Speaker 04:
So the board can remedy those other unfair labor practices through notice posts or other remedies.

[00:11:31] Speaker 04:
But reimposing the union, I think, would contravene directly the statute.

[00:11:36] Speaker 04:
And unless there's any other questions on mootness, I do want to move on to the Chelsea Industries question, which I think is an important question as well.

[00:11:44] Speaker 04:
And here, the board admits that this petition is a valid showing of interest that can be used for an election, as long as that election was requested after the end of the certification year.

[00:11:55] Speaker 04:
However, the board has held that this exact same showing of interest collected at the exact same time cannot be used

[00:12:02] Speaker 04:
as a showing of interest to decertify the union through other purposes, namely a withdrawal.

[00:12:08] Speaker 04:
And that's why the board's decision on that question is arbitrary and irrational.

[00:12:12] Speaker 04:
It serves only to suppress the legal rights of Lopez and a majority of his coworkers who want nothing more than to do with the union.

[00:12:19] Speaker 04:
And the board relies primarily on this court's decision in Chelsea Industries.

[00:12:24] Speaker 04:
Chelsea Industries is an opposite, because there, the employer actually received the petition during the year.

[00:12:30] Speaker 04:
And because the employer received the petition during the year, it's much more akin to a situation where the board receives an election petition during the year.

[00:12:38] Speaker 04:
And if the board receives an election petition during the year, it has to openly reject it.

[00:12:45] Speaker 04:
It has to dismiss it.

[00:12:46] Speaker 04:
But that same petition can be used outside of the year to effectuate a withdrawal, just as this petition should be able to be used outside of the year to effectuate a withdrawal.

[00:12:56] Speaker 04:
Or excuse me, the board can use it to effectuate a selection.

[00:12:59] Speaker 04:
The employer should be able to use it to effectuate a withdrawal because it's the same showing of interest.

[00:13:05] Speaker 04:
gives a litany parade of horribles, but all of those are equally applicable to a petition that is collected for purposes of an election.

[00:13:14] Speaker 04:
And it's the exact same petition that requests an election and requests a withdrawal.

[00:13:20] Speaker 04:
And I'm running through my time here.

[00:13:25] Speaker 04:
Just quickly on intervention.

[00:13:27] Speaker 04:
Intervention was proper.

[00:13:28] Speaker 04:
The core purpose of the National Labor Relations Act is to protect employee rights.

[00:13:33] Speaker 04:
Also, the employers were duly prejudiced, just as the court's decision found in Ozark where an employer was not allowed to present evidence.

[00:13:42] Speaker 04:
The employees were kept out of the hearing, and their attorney was sequestered.

[00:13:45] Speaker 04:
They weren't even allowed to participate or whisper in the employer's ear when they botched the case.

[00:13:49] Speaker 04:
So unless the board has any other questions, we'll.

[00:13:52] Speaker 03:
All right.

[00:13:53] Speaker 03:
Mr. Heller.

[00:14:05] Speaker 05:
I please the court, Joel Heller, for the National Labor Relations Board.

[00:14:09] Speaker 05:
After its employees voted for union representation, Latino Express unlawfully withdrew recognition from their chosen representative.

[00:14:16] Speaker 05:
The board's finding of that violation is based on two independently sufficient grounds.

[00:14:20] Speaker 00:
Can you start out by giving us the board's version of why the case is properly before us at this stage?

[00:14:29] Speaker 05:
The petition for review filed by Lopez was not affected by the settlement.

[00:14:35] Speaker 05:
That only the petition for review filed by Latino Express was part of the settlement.

[00:14:40] Speaker 05:
So it's the board's position that Lopez's petition and the issues it raises are still before the court.

[00:14:48] Speaker 00:
So do you agree with the scenario under which

[00:14:51] Speaker 00:
the case would continue.

[00:14:53] Speaker 00:
The best case scenario for them, as he elucidated, is not something you disagree with.

[00:15:02] Speaker 00:
You agree that that could happen, and in that situation, the fact that this agreement has been entered into wouldn't matter.

[00:15:08] Speaker 05:
We agree that if the court rules for Lopez in this case, that would affect the settlement.

[00:15:15] Speaker 05:
The settlement does not moot Lopez's petition for review or override any decision from this court.

[00:15:22] Speaker 03:
All right, what happens then with your your settlement of?

[00:15:27] Speaker 03:
079 765 there are several cases that was right is the ULP based on the withdrawal of recognition.

[00:15:35] Speaker 03:
You've settled that all right.

[00:15:37] Speaker 03:
What remains of the validity or not of the?

[00:15:42] Speaker 03:
decertification petition on which Latino Express based its withdrawal of recognition?

[00:15:50] Speaker 05:
Well, part of the settlement was that the Latino Express would have to comply with the board's order.

[00:15:56] Speaker 05:
And if this court determines that part of the board's order was wrong, then the board can no longer require Latino Express to comply with that part of the order as incorporated into the settlement.

[00:16:09] Speaker 03:
What part of the order are we talking about?

[00:16:13] Speaker 05:
That the withdrawal of recognition was unlawful and thus the remedy is an affirmative bargaining order that Latino Express and the union have to bargain for a reasonable period.

[00:16:23] Speaker 02:
Would the other unfair labor practices that you settled equally support affirmative bargaining order?

[00:16:31] Speaker 05:
The other ones from this case, the bad faith bargaining and the unilateral change, the remedy for both of those.

[00:16:37] Speaker 02:
Could that include an affirmative bargaining order?

[00:16:39] Speaker 05:
Would include affirmative bargaining order along with other things.

[00:16:43] Speaker 05:
I noticed posting and withdrawal.

[00:16:45] Speaker 05:
There was also a different case that was settled that involves this not before the court.

[00:16:50] Speaker 05:
And so that would still stand.

[00:16:52] Speaker 05:
And the bargaining order did not apply.

[00:16:53] Speaker 02:
Was there an affirmative bargaining order remedy in that case?

[00:16:55] Speaker 02:
No.

[00:16:56] Speaker 02:
OK.

[00:16:56] Speaker 02:
But as to, imagine the unlawful withdrawal claim

[00:17:01] Speaker 02:
or extracted from your settlement agreement, would that change in any way the remedy that would be imposed?

[00:17:11] Speaker 02:
That could have been imposed lawfully by the board, and this would be enforced by the settlement agreement.

[00:17:16] Speaker 05:
Right.

[00:17:17] Speaker 05:
If the board determines that the, or sorry, if the court determines that Latino Express was privileged to withdraw recognition when it did, then the

[00:17:30] Speaker 05:
It remains privileged to withdraw recognition.

[00:17:33] Speaker 05:
If it wants to now, the board cannot force it to bargain as part of the settlement.

[00:17:39] Speaker 02:
I thought you just said the other violations that it committed would also support the affirmative bargaining order.

[00:17:45] Speaker 02:
And so it would still have that obligation with respect to the other unfair labor practices that it committed and that you have settled and that the interveners are not involved in.

[00:17:54] Speaker 05:
That is correct.

[00:17:55] Speaker 05:
That is correct.

[00:17:57] Speaker 05:
intervention is granted and it goes back on remand, then the board will process the case in light of this court's decision and then will determine what remedies are still appropriate at that case, at that point.

[00:18:12] Speaker 02:
And then a second question.

[00:18:17] Speaker 02:
If intervention were to be denied or if we were to decide for the case of the moot or whatever, so if things were to go back just with the settlement in place, what opportunities would there be or how would the representation issue be able to be raised and when?

[00:18:35] Speaker 05:
So, in this scenario, does the court, the court affirms the board's order and denies the petition for review?

[00:18:42] Speaker 02:
You either affirm the board order or dismiss the petition for review.

[00:18:44] Speaker 02:
Sure, right.

[00:18:45] Speaker 02:
Whatever.

[00:18:46] Speaker 02:
Okay, so essentially the settlement stays status quo from our perspective.

[00:18:51] Speaker 05:
Yes, so what happens in that situation is under the terms of the settlement, the parties are required to bargain for a reasonable time, which is defined as at least six months.

[00:19:02] Speaker 05:
And at that point, once the, at that point it's gonna go back to the regional director in the region 13 in Chicago, once the regional director determines that the unfair labor practice

[00:19:14] Speaker 05:
have been, the unfair labor practices have been remedied.

[00:19:17] Speaker 05:
It is then the original director's determination about how to proceed, how to process the decertification petition which remains on file as far as I know with the board's regional office.

[00:19:29] Speaker 05:
So that is, the decision will be made at that point after the reasonable period of time for bargaining has elapsed.

[00:19:38] Speaker 02:
But it wouldn't, but their pending petition would not be processed during that six month period.

[00:19:42] Speaker 02:
Not during that period, no.

[00:19:43] Speaker 02:
That's a function of board precedent.

[00:19:46] Speaker 05:
Yes, that is the blocking charge in which the board has determined, has long determined and is not being challenged in this case that an election held in the shadow of an unremedied, unfair labor practice would not be a fair election.

[00:20:00] Speaker 05:
And so it is temporarily put on hold until the unfair labor practices are remedied.

[00:20:06] Speaker 05:
And so as to the withdrawal of recognition, which of course the board believes is unlawful, and we wouldn't get into any of these issues if that decision is affirmed, it's well settled that a union enjoys irrebuttable, conclusive presumption of majority support for the first year after it is certified as a bargaining representative.

[00:20:26] Speaker 05:
And so it follows from that evidence arising during the certification year cannot serve as the basis for an employer's unilateral withdrawal of recognition, even outside of the year.

[00:20:37] Speaker 05:
Giving effect to such evidence would negate the presumption, because the challenge to majority support would occur during a time at which that support is presumed.

[00:20:49] Speaker 05:
But that is what happened.

[00:20:50] Speaker 05:
It is uncontested that the signatures were gathered during the certification year.

[00:20:55] Speaker 05:
And the interest, the board's interest, Congress's interest in encouraging stable bargaining relationships and honoring the choice of employees who choose to be represented are furthered by that principle, which applies equally in this case.

[00:21:13] Speaker 05:
The union would face undue pressure to produce what the Supreme Court has called hothouse results if it knows that it could be turned out, that employee dissatisfaction could foment during that year and lead to an immediate withdrawal at the end of the year.

[00:21:32] Speaker 05:
Ultimately, this is a question of the board balancing interests as the score recognized in Chelsea Industries.

[00:21:41] Speaker 05:
There are various principles at play.

[00:21:43] Speaker 05:
The interest in stable bargaining relationships and giving effect to employee choice, both the employees who choose representation and those who do not.

[00:21:55] Speaker 05:
And the board has determined in that determination is worthy of of deference that this certification year doctrine is for the best furthers those principles.

[00:22:08] Speaker 05:
Lopez mentioned that the same signatures could affect or could lead to an election outside of the.

[00:22:14] Speaker 05:
certification year, but an election is different than a unilateral withdrawal of recognition.

[00:22:19] Speaker 05:
With an election, the actual test of majority support occurs outside of the certification year.

[00:22:24] Speaker 05:
And when the signatures are just supporting an employer's unilateral withdrawal, then the operative evidence arises during the certification year, a time in which the union's majority support is presumed.

[00:22:38] Speaker 02:
Would you be able to just briefly address or try to explain to me what the board's

[00:22:43] Speaker 02:
even-handedly applied standard for intervention is, because I surely couldn't discern it from the decisions that are here.

[00:22:53] Speaker 05:
Intervention, by statute, is a matter of discretion for the administrative law judge.

[00:22:59] Speaker 05:
And so the standard is abuse of discretion.

[00:23:02] Speaker 05:
Though I would like to say, as an initial point, if the court agrees with the board on the certification year issue, there's really

[00:23:10] Speaker 05:
nothing left to the intervention issue because there's nothing that, and this is a factor considered in the decision whether to grant intervention, there's nothing that Lopez, no evidence that Lopez could have provided that would have changed the outcome in this case.

[00:23:22] Speaker 02:
It is uncontested that the signatures were gathered during the certification year.

[00:23:28] Speaker 02:
Even when courts have discretion, they're supposed to have standards that are even-handedly applied on some basis for discerning how that standard and factors are applied from case to case in a way that is even-handed.

[00:23:44] Speaker 02:
And that's what, for the life of me, figure out.

[00:23:47] Speaker 02:
what was applied in this decision and how it was different from other decisions where intervention was granted.

[00:23:52] Speaker 05:
Sure.

[00:23:52] Speaker 05:
Well, there was the oral ruling by the administrative law judge at GA 40 through 55, somewhere in there.

[00:24:01] Speaker 05:
And so one factor, as I just mentioned, is whether the putative intervener could

[00:24:07] Speaker 05:
bring any evidence to the case that would change the outcome.

[00:24:11] Speaker 02:
Well, I said here we could have certified those.

[00:24:12] Speaker 02:
We could have done a heck of a lot better job of certifying those signatures than occurred.

[00:24:18] Speaker 05:
But the authentication of the signatures doesn't matter if the court agrees that the withdrawal was unlawful because the signatures were gathered during the certification year.

[00:24:26] Speaker 05:
Those were independently sufficient grounds that the board found for holding the withdrawal.

[00:24:32] Speaker 05:
And I don't think that it can be an abuse of discretion for the administrative law judge not to predict that Latino Express would not fulfill its, satisfy its burden of authenticating the signatures.

[00:24:47] Speaker 05:
They certainly had an incentive to do so, so as to avoid unfair labor practice liability and is clear from their conduct during negotiations, they had no interest in maintaining a bargaining relationship with the union.

[00:25:03] Speaker 02:
Was something different there from other cases where intervention was granted?

[00:25:07] Speaker 05:
So in some of the cases where intervention was granted, Lopez cites intervention was unopposed.

[00:25:13] Speaker 05:
So that's a difference between these cases, certainly.

[00:25:16] Speaker 05:
There's no reason to set out an analysis whether or not to grant intervention if intervention is unopposed.

[00:25:23] Speaker 05:
Some of the cases, I would say that the cases that we cite in our brief, several of them are court of appeals cases affirming the denial of intervention below.

[00:25:37] Speaker 05:
But there are no cases that Lopez cites in which a court of appeals reversed a denial of intervention as an abuse of discretion.

[00:25:43] Speaker 02:
I think it would be helpful for the board to articulate sort of clear standards and factors so that

[00:25:48] Speaker 02:
courts and parties can know that rules are being applied even-handedly on intervention?

[00:25:52] Speaker 05:
Well certainly, and I think if you read the ALJ's world ruling, which was adopted by the board, he does give explanations, and that is that the relevant question is whether there's kind of circumstances

[00:26:07] Speaker 05:
Whether the petition was developed in some way factually that does not allow the employer to rely on it, those are the relevant facts.

[00:26:14] Speaker 05:
And so Lopez's, as he said in his motion to intervene, he wanted to bring evidence as to his experience with the union, his reason for disliking the union that's courted at JA 44.

[00:26:27] Speaker 05:
And the administrative law judge determined that evidence was not relevant to the question of whether there was some kind of factual problem with the petition, such as the premature signatures.

[00:26:39] Speaker 05:
He also made the point that, as is set out in the NLRA, there's a distinction between representation cases and unfair labor practice cases.

[00:26:46] Speaker 05:
And this is an unfair labor practice case, while the evaluation of employee sentiment comes out in a representation case.

[00:26:54] Speaker 05:
And so you see that in some of the cases we cite, the courts affirming the denial of intervention by employees opposed to a union in the unfair labor practice case against their employer, and even in cases where the remedy was a bargaining order, or even in cases where the employees had signed a decertification petition.

[00:27:13] Speaker 05:
That statutorily provided distinction between the two types of proceedings is what the administrative law judge maintained when he ruled on the motion for an intervention.

[00:27:27] Speaker 03:
That's therefore in the questions.

[00:27:29] Speaker 03:
Thank you.

[00:27:30] Speaker 03:
Does Mr. Sullivan have any time?

[00:27:33] Speaker 03:
All right, why don't you take one minute.

[00:27:38] Speaker 04:
So I wanted to make a few quick points.

[00:27:39] Speaker 04:
First, the employees are still aggrieved here because they're subject to a union that is a minority union.

[00:27:45] Speaker 04:
And the board bespoke they cannot impose a bargaining order here because the petition was not tainted, just as this court refused to enforce a bargaining order upon employees in Teneco, which is cited in the board's brief, for the same reason that there is no taint of the petition here, because any unfair labor practices that occurred occurred after the collection of the majority petition.

[00:28:06] Speaker 04:
And the board talked a little bit about how they can treat an election differently than withdrawal.

[00:28:11] Speaker 04:
But the board neither makes a distinction nor a difference because the test in Leavitts is at the time withdrawal occurs, does the union lack majority support?

[00:28:20] Speaker 04:
So the NLRB's distinction says, well, they collected the signatures during the year.

[00:28:25] Speaker 04:
But the withdrawal occurs outside of the year.

[00:28:27] Speaker 04:
And that's clear under Leavitts.

[00:28:30] Speaker 04:
Now, real quick to your point, Judge Millett, you're right that the board's standard for intervention is a mess.

[00:28:37] Speaker 04:
And I want to correct the board.

[00:28:39] Speaker 04:
In our intervention, the intervention in both Renaissance and Boeing, which are cited in our brief, were not unopposed.

[00:28:45] Speaker 04:
They were opposed.

[00:28:46] Speaker 04:
And the board has no standards.

[00:28:47] Speaker 04:
And the question here is prejudice.

[00:28:50] Speaker 04:
Were the employees actually prejudiced?

[00:28:51] Speaker 04:
And if the signature was collected during the year, so if we can overcome the hurdle of Chelsea Industries.

[00:28:57] Speaker 04:
We're clearly prejudiced because the employer didn't even attempt to defend the employee's petition.

[00:29:01] Speaker 04:
Thank you.