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Case number 16-1261 at L, Colorado Fire Sprinkler Inc.

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Petitioner versus National Labor Relations Board.

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Mr. Lentz for the petitioner, Mr. Barrett for the respondent, Mr. Osborne for the intervener.

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Good morning.

[00:00:49] Speaker 09:
Good morning.

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I'd like to reserve three minutes for both.

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May it please the court.

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I am Thomas Lenz.

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I am representing petitioner Colorado Fire Spring Corps.

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I'm joined today by Kent Stringer and Becky Stringer who have flown here from Pueblo, Colorado for the hearing.

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This case is postured as a National Labor Relations Board matter involving a duty to bargain.

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And under construction industry rules, Section 8F relationship, arguably transforming into a 9A majority-based bargaining relationship, we disagree with the National Labor Relations Board finding.

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And frankly, the NLRB's ruling is contrary to the precedent of this court.

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Many times in National Labor Relations Board cases, the employer is couched as some sort of large entity trying to violate the rights of employees.

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This is a small business.

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This is a small business which has been union since its inception before it even started to hire employees because construction industry rules allow that.

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We're dealing with what is called a local union.

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It's actually a national labor entity based here on the East Coast.

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And we're dealing, of course, with the national federal agency, the National Labor Relations Board.

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So in terms of scale, my client, Colorado Fire Spring Corps, is the small player in this chemistry.

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The question at issue in the unfair labor practice proceedings is whether there exists a bargaining relationship

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between my client and the union after March 31, 2013.

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Now, my client signed collective bargaining agreements basically on forms that were provided by the union.

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Every single time an agreement was signed, there was no negotiation.

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And I think it's really important to point out that there came a point in time where negotiation was needed, at least discussion.

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This court has acknowledged the importance of Section 8F in the construction industry, the unique exception it provides, and in the Nova plumbing case, really provided a distinction between Section 8F and Section 9A relationships, which is where NLRB and the union contend we have gone.

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And I think what tends to be overlooked, if you look at the National Labor Relations Board's ruling and the arguments that have been made by NLRB and the union thus far, we have a complete failure to look at the rights of employees.

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And while... Complete failure?

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I think so because... What evidence was before the board?

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The evidence of employees' ability to choose a labor union is vacant.

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In fact, we were cut off in terms... So your client signed contracts where he falsely represented that he had independently determined that the union represented a majority of employees and that the union had proffered to demonstrate this to him?

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My client signed form agreements proffered by the union.

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Your client's a businessman.

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Business people, I guess, and presumably know to read contracts.

[00:04:18] Speaker 09:
My client is a construction industry contractor.

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Not a contractor for a living, so presumably reads contracts, and yet you're telling us your argument is predicated on the assumption that for 15 or 20 years,

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need false representations on the contracts.

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These were agreement forms that were presented by the union and there was no discussion of them.

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My client understood that in order to operate as a unionized contractor that this form needed to be signed.

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It's no different in substance than the form that was signed in the oak.

[00:04:55] Speaker 09:
I don't see a material distinction, Your Honor.

[00:04:58] Speaker 08:
Well, what about the evidence that was there in the Nova case?

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In the Nova case, the issue involved a contractor which became bound to a labor agreement as a result of a trust fund lawsuit settlement.

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What evidence is there in this case beyond your client answering the question that the unions

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not to his knowledge, had ever indicated its majority status.

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There was no evidence at all presented in the record that the union had.

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So the board said this case is just like our, what is it, fire case?

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King's Fire.

[00:05:47] Speaker 08:
King's Fire.

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Yes, the board relied on King's Fire and they relied on starting fuel, which this court rejected in Nova plumbing.

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And Nova held that the burden was on the board and the union to present, if there's no evidence, and all you're left with, which is what we have here, is the contractual provision,

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that the Nova case held that it was incumbent upon the board and the union, the board's general counsel, and the union to present evidence of majority support.

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That was not done in this case.

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The burden was on the board under Nova and the union to present that evidence.

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That's exactly right.

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So if that is a correct reading of Nova, what should have happened in this case?

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This case should have been dismissed in the investigation phase.

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So the union would have no opportunity?

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The union would have had every opportunity to go to the employees and, say, sign cards during the term of the agreement.

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No, what I'm trying to get at, in King's, the board said very clearly that it understood the burden was on the union, but that the testimony before it was insufficient to overcome the showing

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by the General Counsel.

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So the question, unlike in NOVA, where there was all this evidence that the union, what did we say, significant evidence that the union did not represent a majority of employees, where is the significant evidence here?

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There was evidence of disaffection that was presented in the hearing before the administrative law judge in the Nova case.

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No, I understand that.

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In this case, we attempted to present evidence on the interaction between the union and the employees and recognition demands and so forth.

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And your counsel said, or counsel for your client said, all we want to do is make this point.

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to the ALJ.

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And it went ahead and the ALJ said, fine, make that point, but I don't want to get into all this other stuff.

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And no objection was preserved at that point.

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Because your client answered, not to my knowledge.

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And that was the end of the matter.

[00:08:07] Speaker 09:
I have a different reading of the record, Your Honor.

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I'm just almost quoting the record.

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The Council made no objection.

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There was discussion on the record that we wanted to go into the majority support issue.

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And counsel clarified for the ALJ that he only wanted to get the answer to this question.

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And the ALJ said, fine.

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And he allowed counsel to ask Mr. Springer the question.

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And Mr. Springer gave his answer.

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There was also evidence on the record that there was no National Labor Relations Board election.

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We tried to go into further detail on this, but the judge was quite adamant that he did not want to go into these issues in any depth.

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What proper was made?

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There was no election.

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There was no election.

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No authorization cards.

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There were no authorization cards.

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Nobody asked about that.

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You don't know.

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That's an issue that we tried to go into, Your Honor.

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No.

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You have to put this in the record.

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It's not there.

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Because as you know from the briefing in this court, when one employee tried to make some representations, the union came back and offered all this data about the employee's record.

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So my only point is that you're going to raise this

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The union has to have a chance to put forth the response.

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The union certainly had an opportunity to put forth its position and to present evidence, but the position... But the issue was never joined, is what I'm getting at.

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I'm sorry?

[00:09:55] Speaker 08:
The issue was never joined.

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In other words, in all these cases, Supreme Court's decision in garment workers, our case in Nova Plumbing, our case in M&M, our case in Allied Mechanical,

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There's record evidence before the board.

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There is record evidence.

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That Section 7 rights are in jeopardy.

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And indeed, the amicus brief here cites a whole page of cases where there was some evidence to raise a question as to whether employee rights were being interfered with

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by the employer and the union.

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We don't have any of that here, do we?

[00:10:43] Speaker 09:
The record is far more silent than I would like it to be, Your Honor, and it's our position that we were cut off and we were not allowed to go into that issue.

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All right, so you weren't counseled before.

[00:10:58] Speaker 09:
I was counseled, Your Honor.

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I handled the hearing.

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So did you preserve your objection?

[00:11:02] Speaker 09:
Yes, I did.

[00:11:02] Speaker 08:
How?

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Where?

[00:11:05] Speaker 09:
I discussed it with Judge Moll.

[00:11:06] Speaker 04:
Can you point us to the record page?

[00:11:08] Speaker ?:
Where?

[00:11:09] Speaker 08:
You said you only wanted to ask your client this question, and the ALJ allows you to ask and get an answer.

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May I?

[00:11:18] Speaker 09:
Sure.

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And as I look for this transcript, what I also want to point out is this case's holding in Nova really puts the onus on the union and the board to provide proof of majority support.

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So what the board has said and what this court has said is there are several ways to do this.

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And here we have, you started out by saying this is a very small company.

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It's been union from its exception.

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Under Section 8F.

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And there's nothing pointing to disaffection or abuse of Section 7 right that's in the record.

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That's all I'm trying to get at.

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And in the fire case, the board said a mere statement by the employer given the record here, given the contract language, given what the employer had represented repeatedly in these contracts.

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that there was no basis to overcome the general counsel showing.

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The position we're being put in is really to have some sort of burden of proof on this issue.

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The burden of proof is entirely with the union and the board.

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But what about what the board said in the fire case?

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It said it's not putting the burden on the employer, not at all.

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The burden is on the general counsel to make its case.

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And then the employer has a chance to rebut that case.

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And saying, not to my knowledge, the board here said, that's not enough.

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Well, I respectfully disagree with the board, Your Honor.

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And ladies garment workers, as well as Nova Plumbing, in our view, supports the position that we have taken.

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In other words, you can have a relationship

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And by citing Nova Plummon, that's enough.

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No, it's not enough, Your Honor.

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I think that the factual context is important.

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And the factual context here, as the employer says, not to my knowledge.

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He doesn't say there are no authorization cards.

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He doesn't say he knows for a fact.

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or he even suspects?

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Nor did the union present any such evidence.

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The entire scope of the evidence is the forum agreement language, which somehow... What's wrong with that when you have a pattern and the board has continuously said, and we have said, that the voluntary recognition by an employer

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can be sufficient.

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We're working in the very specific and narrow context of Section 8F of the National Labor Relations Act for this industry.

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And the United States Supreme Court and ladies garment workers, this court and NOVA have made clear that the rights of employees under Section 7 can't be taken away by someone else.

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Whether or not we spoke to that issue, contract language should not sweep employee rights into the rug.

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All I'm getting at is in those cases there were strikes,

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There were employers refusing to rehire.

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We don't have any of that in this case.

[00:15:15] Speaker 09:
We don't.

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It was a one-day hearing.

[00:15:18] Speaker 08:
No, no, no.

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What I mean is you didn't preserve any objection before the board and the ALJ.

[00:15:24] Speaker 06:
I think the pages are 27 and 28 in the appendix.

[00:15:29] Speaker 08:
Your discussion with the ALJ.

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In line 1011, your explanation for what you want was, I would like to just have this question answered and move on.

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That doesn't sound like you were trying to introduce evidence.

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In other words, that's your statement.

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And then the ALJ allowed you to ask the question and for your client to give the answer.

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Ethel on page 28.

[00:16:03] Speaker 09:
In 27, I asked a question about representation.

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On page 28, Judge Moll said the argument in terms of the relationship is based on the contract language.

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And here's your response on page 28, line 10.

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You see it?

[00:16:25] Speaker 09:
Yes.

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That doesn't sound like you want to put in evidence.

[00:16:30] Speaker 08:
You told the LJ, quote,

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I would like to just have this question answered and move on."

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End quote.

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And Judge Mool agreed.

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Okay, answer the question and then move on.

[00:16:45] Speaker 06:
So he agreed with what you wanted to do.

[00:16:52] Speaker 09:
We certainly did discuss it with the judge, Your Honor.

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And then in terms of... You agree.

[00:16:58] Speaker 08:
Are you saying the transcript is incorrect?

[00:17:00] Speaker 09:
I'm not saying the transcript is incorrect, but we certainly did discuss it with the judge.

[00:17:03] Speaker 08:
Where?

[00:17:05] Speaker 09:
It came up again with Robert Blackwell.

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We tried to go into the issue of union support and what had been done on that front.

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Where is that?

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See, Mr. Blackwell starts day 44.

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Direct examination.

[00:17:42] Speaker 06:
On 45, you say did employees talk to you about the union?

[00:17:45] Speaker 06:
Very little objection.

[00:17:47] Speaker 06:
And then you say, I'll rephrase.

[00:18:00] Speaker 09:
All right.

[00:18:02] Speaker 08:
Well, on appeal, do you agree that you haven't proffered anything to this court that you were prevented from introducing to show that the union did not hold majority status?

[00:18:14] Speaker 09:
I believe that the language from the testimony of Kent Stringer goes to that point.

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Not to my knowledge?

[00:18:24] Speaker 09:
Not to my knowledge, goes to that point.

[00:18:26] Speaker 09:
And there has been no evidence of majority support otherwise presented.

[00:18:31] Speaker 06:
Well, I guess, I take your position, but the contract language alone is not enough.

[00:18:38] Speaker ?:
Right.

[00:18:38] Speaker 06:
Don't we have more than that here?

[00:18:40] Speaker 06:
You have contract language, and then you have, I forget what this is, 15 or 20 years of an employer signing documents.

[00:18:49] Speaker 06:
That's an external act by the employer affirming that I have this status.

[00:18:55] Speaker 09:
There have been a number of Section 8th agreements signed as a series.

[00:19:01] Speaker 06:
No, no, the agreements actually say 9A, which is different than DOVA.

[00:19:06] Speaker 09:
And then the NLRB and the union differ in terms of when 9A obligations allegedly attached.

[00:19:13] Speaker 09:
So the fact that these agreements continue to be signed tells me that it is an 8F agreement.

[00:19:22] Speaker 08:
And the fact... It may tell you that, but you have the burden to present evidence to the board, don't you?

[00:19:29] Speaker 09:
I don't believe we have any burden at all.

[00:19:31] Speaker 08:
So you can just cite NOVA plumbing and sit down.

[00:19:34] Speaker 09:
No, I don't think it's that easy either.

[00:19:37] Speaker 09:
I think we have to look at the agreement.

[00:19:39] Speaker 09:
We have to interpret the agreement.

[00:19:41] Speaker 09:
And the National Labor Relations Board would say it doesn't meet starting fuel standards.

[00:19:46] Speaker 09:
But we don't believe starting is valid in light of this court's precedent in NOVA.

[00:19:50] Speaker 02:
This is the portion of, and you don't have to interpret anything.

[00:19:55] Speaker 02:
This is the portion of NOVA that I take it you rely on.

[00:19:58] Speaker 02:
It says that the record contains no, this is no,

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No evidence of independent verification of employee support.

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This lack of evidence is fatal.

[00:20:08] Speaker 02:
Yes.

[00:20:09] Speaker 02:
And then by neither introducing such proof nor explaining its absence, the board and the union have failed to demonstrate an authority representation.

[00:20:18] Speaker 09:
Exactly.

[00:20:19] Speaker 02:
All that's left is the contract and that's not good enough.

[00:20:22] Speaker 09:
The contract is not good enough because otherwise it would invite employers and unions to collude and strip away employees' right of choice.

[00:20:30] Speaker 09:
There's been no yes, no no in this case.

[00:20:33] Speaker 08:
What evidence is there of that?

[00:20:35] Speaker 08:
I mean, you may be correct, but what evidence is there?

[00:20:39] Speaker 09:
The burden is on the union to present that and the board, and there was no such evidence.

[00:20:44] Speaker 08:
So this court has been clear, and that's what I tried to get you to focus on.

[00:20:50] Speaker 08:
Garment workers, that's the Supreme Court.

[00:20:53] Speaker 08:
Nova plumbing, M&M, and allied mechanical.

[00:21:01] Speaker 08:
All of those cases, there is some evidence

[00:21:07] Speaker 08:
that the union does not represent a majority of employees.

[00:21:13] Speaker 08:
And that was sufficient to overcome the general counsel showing to the contrary.

[00:21:20] Speaker 09:
In Allied Mechanical?

[00:21:22] Speaker 08:
So if I'm a union person, any time I enter into an agreement in the construction industry, I have to force upon the employer proof

[00:21:37] Speaker 08:
even though the employer says I've independently verified this and the union has proffered

[00:21:45] Speaker 08:
evidence of its majority support to me?

[00:21:47] Speaker 09:
What most unions are doing is incorporating language like that in their agreements, and they're hoping that employers will not litigate.

[00:21:56] Speaker 02:
If they litigate... Well, there's no proffer in this case.

[00:21:59] Speaker 02:
Yes, there was.

[00:22:00] Speaker 02:
Of union support.

[00:22:02] Speaker 02:
The testimony of the owner was that he had no basis for, what was it, on 20... Not to my knowledge.

[00:22:10] Speaker 02:
Not to my knowledge.

[00:22:12] Speaker 09:
That's correct.

[00:22:15] Speaker 09:
So unions are frequently inserting clauses like this, hoping that these cases resolve through settlement.

[00:22:20] Speaker 08:
But your client didn't say he was acting involuntarily.

[00:22:26] Speaker 08:
when he signed all these agreements.

[00:22:30] Speaker 09:
My client signed the paperwork that was presented by the union, and it was when my client had advised the union well in advance that we are not going to be able to agree to the health plan, that there was any real movement toward negotiations.

[00:22:46] Speaker 08:
But you remember, the union filed a charge, and your client asked the union to withdraw the charge because

[00:22:56] Speaker 08:
He said he wanted to remain union.

[00:22:59] Speaker 08:
All right?

[00:23:00] Speaker 09:
Then they had some... My client asked the union to withdraw the charge and suggested that they wanted to talk and achieve a different deal.

[00:23:08] Speaker 08:
And to remain union.

[00:23:09] Speaker 08:
And to remain union.

[00:23:10] Speaker 09:
That's correct.

[00:23:11] Speaker 08:
All right?

[00:23:12] Speaker 08:
Then they had some negotiating sessions.

[00:23:15] Speaker 08:
They could not reach agreement.

[00:23:18] Speaker 08:
The union filed a charge.

[00:23:21] Speaker 09:
which was far more than six months beyond when the union was aware that my client intended to change the health plan.

[00:23:31] Speaker 09:
So the union's charge was untimely.

[00:23:34] Speaker 09:
And the ALJ properly noticed that.

[00:23:39] Speaker 08:
OK.

[00:23:39] Speaker 08:
Shall we hear from counsel for the board?

[00:23:42] Speaker 08:
Yes.

[00:23:42] Speaker 08:
That will give you some time and rebuttal.

[00:23:44] Speaker 09:
Thank you.

[00:23:51] Speaker 01:
This is the court.

[00:23:52] Speaker 01:
Good morning.

[00:23:52] Speaker 01:
My name is Jeff Ford.

[00:23:53] Speaker 01:
I'm here on behalf of the National Relations Board.

[00:23:55] Speaker 01:
Your Honor, as you pointed out, in 2005, the union offered a two-page assent agreement at deferred appendix 107 and 108, the first paragraph of which

[00:24:06] Speaker 01:
It states that the company verified the union's status as the majority representative of the employees, and critically, that the union offered to show confirmation of that majority status to the company.

[00:24:23] Speaker 01:
Now, as I said, under the Board's staunt and fuel standard, that meets the requirements of the board's test and staunt and fuel.

[00:24:29] Speaker 01:
Under that analysis, that means the requirements of establishing a 9A relationship despite the fact that this is a construction industry employer.

[00:24:37] Speaker 06:
Wait, if this were not a construction case, which is a regular employer, your position is that language like that alone would be sufficient just to establish a union by voluntary recognition under 9A?

[00:24:51] Speaker 01:
Unfortunately, I can't answer that question.

[00:24:54] Speaker 06:
I'm not as... Doesn't the standard have to be the same?

[00:24:57] Speaker 06:
The point here is that if functionally what's going on is a voluntary recognition by contract.

[00:25:02] Speaker 01:
That's right.

[00:25:02] Speaker 06:
And certainly... And at a minimum, it would have to meet the 9A standard for voluntary recognition by contract.

[00:25:08] Speaker 06:
One might argue there'd even be more given the presumption in favor of continued 8F status.

[00:25:13] Speaker 06:
So how can the Board offer a test here that seems to be softer than what is required for voluntary recognition by contract under 9A?

[00:25:20] Speaker 01:
I'm sorry, I'm not suggesting that it would be softer.

[00:25:22] Speaker 01:
It's just whether or not, given the facts and circumstances of a specific case, it's difficult to hypothesize on what the board might rule.

[00:25:31] Speaker 02:
Isn't the rule that the employer has to have a good faith belief in majority status?

[00:25:38] Speaker 02:
Even when presented with authorization cards, if the employer has a good faith doubt about the majority of status, he's not required to recognize the union?

[00:25:50] Speaker 01:
Well, the employer is never required to recognize the union absent in an election.

[00:25:55] Speaker 01:
Per agreement, they may do so.

[00:25:57] Speaker 06:
And so here, if those- But it's even a stricter standard than good faith.

[00:26:00] Speaker 06:
I think good faith isn't enough.

[00:26:01] Speaker 06:
So the case would say, in fact, the employer under a 9A recognition

[00:26:06] Speaker 06:
has to take reasonable measures to verify status for precisely the same reasons that have been talked about in garment workers and things like that.

[00:26:14] Speaker 06:
So it sounds like just saying contract language by itself

[00:26:21] Speaker 06:
wouldn't be enough in a 9a case so how can it be enough in an 8f case when you actually have a presumption in favor of 8f status?

[00:26:28] Speaker 01:
Again, I'm not I'm not saying that it wouldn't be enough in a 9a case.

[00:26:31] Speaker 01:
Certainly voluntary recognition based on agreement between the union.

[00:26:34] Speaker 06:
How could this be enough if you have to have a reasonable

[00:26:38] Speaker 06:
efforts by the employer under 9A.

[00:26:41] Speaker 01:
I should say, unfortunately, the precise standard in the non-construction industry standard for reaching a voluntary agreement is escaping me at the moment, but I'm not suggesting that it would be more than this.

[00:26:52] Speaker 06:
Let's assume it requires reasonable

[00:26:54] Speaker 06:
effort by the employer.

[00:26:55] Speaker 06:
The employer bears the burden of making a mistake.

[00:26:58] Speaker 01:
The employer had every opportunity.

[00:26:59] Speaker 01:
The union offered it the opportunity as the employer agreed to in its 2005, 2007, and 2009 agreements.

[00:27:04] Speaker 06:
I'm not sure we even have good faith here because we have the employer in 1991 verifying union status when it had no

[00:27:12] Speaker 06:
no employees, so I'm not sure we even have good faith here.

[00:27:15] Speaker 01:
Well, Your Honor, the one thing is that the critical distinction between the agreements that began in 1991 and continued until, I believe, 2003, if I'm not mistaken, and then the 2005 agreement, which is critically different because it was only in the 2005 agreement that the union that includes language stating that the union offered to show proof or confirmation, I believe, the language states

[00:27:36] Speaker 01:
that it had the majority support of employees.

[00:27:40] Speaker 01:
That language was absent prior to that.

[00:27:42] Speaker 01:
So although you are correct that in 1991 there were no employees and yet there was this assertion, explicit assertion that it was under 9A, that arguably, again the board didn't assess this, but arguably that wouldn't have met Staunton fuel because it lacked that critical third component of Staunton of an offer to show proof.

[00:27:58] Speaker 01:
So the employer had the opportunity to do that.

[00:28:00] Speaker 06:
I'm just trying to figure out why the union offering proof

[00:28:04] Speaker 06:
does anything to establish the reasonableness of the employer's verification?

[00:28:10] Speaker 01:
Well, because the employer doesn't have the ability to later claim that it didn't check on the offer of proof.

[00:28:19] Speaker 01:
And it effectively turned its back in 2005 on the union's offer of proof to later utilize that as a defense once it desires to essentially get out of the obligations that it entered into.

[00:28:31] Speaker 01:
in the agreement.

[00:28:32] Speaker 01:
So the offer of proof is sufficient.

[00:28:34] Speaker 01:
I think the court has recognized that in Allied Mechanical, that there are reasons why it can't, you know, the union can't force the company to look at it, but the offer is sufficient and if the company doesn't take it.

[00:28:44] Speaker 02:
But that's totally inconsistent with NOVA deployment.

[00:28:46] Speaker 02:
The recognition clause in Nova Plumbing wasn't an author of proof.

[00:28:51] Speaker 02:
It said that the evidence was actually presented.

[00:28:55] Speaker 01:
Yes, Your Honor.

[00:28:55] Speaker 02:
Based upon evidence presented to the contractor by the union, which evidence demonstrates the union represents majority.

[00:29:04] Speaker 02:
And we held that that contract language, standing alone, is insufficient.

[00:29:09] Speaker 01:
Well, Your Honor, I- How do you distinguish

[00:29:13] Speaker 01:
I would distinguish, if I could offer a page citation, I would offer, I would distinguish NOVA plumbing based on the language that appears on page 537 in which the court states it's under the Westlaw heading 7 and 8, I don't know if that helps you at all, but it's standing alone, contract language and intent cannot be deposited at least where

[00:29:33] Speaker 01:
As here, the record contains strong indications that the parties had only a Section 8F relationship.

[00:29:39] Speaker 01:
So I understand the breadth of the rationale that the court offered.

[00:29:42] Speaker 01:
However, the holding of Nova Plumbing itself appears to be limited to the specific situation where there is countervailing evidence.

[00:29:51] Speaker 01:
And here, as there's been a good deal of discussion already, there was minimal at best countervailing evidence.

[00:29:58] Speaker 01:
Now, I could take the opportunity to discuss what exactly occurred at the hearing.

[00:30:02] Speaker 01:
I think that's probably been addressed.

[00:30:03] Speaker 01:
I would like to, at the risk of taking kind of a belt and suspenders approach, I would also point out that any issue as to the judge's evidentiary rulings was not preserved in the company's opening brief.

[00:30:14] Speaker 02:
What do you do with the language on the preceding page?

[00:30:23] Speaker 02:
No, this argument's well taken.

[00:30:25] Speaker 02:
The proposition that contract language standing alone can establish the existence of a Section 9A relationship runs roughshod over the principles established in garment work.

[00:30:36] Speaker 01:
Well, my response to that is, too, and the first might be a bit frustrating, and that's that I believe that the language here should be read in light of the facts.

[00:30:44] Speaker 01:
at issue in that case, which is where unfortunately the board did not consider the countervailing evidence and the court granted the petition for review as a result and instructed the board that it must consider that type of evidence even where there is contract language.

[00:30:58] Speaker 02:
So I think that's... Would you agree that the only evidence we have in this case

[00:31:02] Speaker 02:
of union majority support, is the contractual provision executed in 2005?

[00:31:10] Speaker 01:
That's the only, I mean, if we could break it down into kind of primary forms of evidence and secondary forms of evidence, which the board doesn't do.

[00:31:16] Speaker 01:
I'm just using that for the purposes of discussion.

[00:31:18] Speaker 01:
The primary source of evidence is the assigned agreement.

[00:31:21] Speaker 01:
I would say, however, that there is other indications.

[00:31:24] Speaker 01:
There's the indications that these union members, as well as Mr. Stringer, I believe himself the record establishes, obtained health insurance through the union's funds

[00:31:31] Speaker 01:
that the employees continued to receive benefits in health insurance and pension and other wealth union funds for years.

[00:31:38] Speaker 01:
And there was no suggestion, there was no suggestion from Mr. Blackwell, who was in probably the best position of anyone to protect employee interests as both somebody who testified before the hearing and filed amicus briefs before both the board and this court.

[00:31:50] Speaker 01:
And there was no assertion that there was any type of disaffection or strong indications of a lack of majority support as was President Nova.

[00:31:57] Speaker 01:
Now, I would also say that the court's concern, obviously, or one of the court's concern, obviously, in Nova Plumbing, is the opportunity for collusion between unions and employers, where, if I may, they're sitting around a conference table and decide the fate of their employees.

[00:32:11] Speaker 01:
However, we think that that's adequately addressed in the overall structure of the National Labor Relations Act.

[00:32:16] Speaker 01:
If we remember that the garment workers' case was not a case along these lines, or it was an 8F or 9A determination,

[00:32:23] Speaker 01:
It was a case of what was going on between the employer and the union.

[00:32:26] Speaker 01:
The employees here had the opportunity to file both.

[00:32:30] Speaker 01:
If they felt that the employer improperly recognized the union and if the union improperly accepted that recognition, the employees had the opportunity to file charges under 8A2 against the company and against 8B against the union.

[00:32:43] Speaker 06:
I'm not sure that argument worked so well here, and that is because in the 8f context, subtract the pejorative nature of the term collusion, but the whole concept of an 8f starting point is

[00:32:56] Speaker 06:
between the union and the employer without this pejorative nature that, you know, that, hey, we are going to an advanced tele-employees, you know, this is your union and you have to join it, which may be why there's particular concerns about trying to transition to 9A in this context and why we have a presumption

[00:33:15] Speaker 06:
of ADEF status.

[00:33:16] Speaker 06:
And the whole reason we have that special rule is that employees come and go.

[00:33:21] Speaker 06:
It can be a transient employment population.

[00:33:23] Speaker 06:
And so the notion that any particular group of employees is going to have the time and resources to file one of these challenges is, again, within the structure of the statute, not really, I think, a fair framing of what's going on in this context.

[00:33:38] Speaker 06:
So given that we start with actual

[00:33:41] Speaker 06:
hand-in-hand joining of arms by the union and employer, forcing it on employees, then doesn't the need for sort of the 9-8 protections before you have voluntary recognition by contract apply with even greater force here?

[00:33:59] Speaker 06:
So it's not enough to say, to disparage, to have some inclusion.

[00:34:03] Speaker 06:
There is.

[00:34:04] Speaker 06:
They're in it together.

[00:34:05] Speaker 06:
They've been in it together.

[00:34:06] Speaker 01:
They were in it together.

[00:34:07] Speaker 06:
He was making false representations about employees that didn't exist.

[00:34:10] Speaker 01:
Well, and now that the company has essentially engaged in that action, now it's trying to use its own actions to escape the obligations that it entered into.

[00:34:19] Speaker 01:
The employees also had the opportunity.

[00:34:21] Speaker 06:
The burden is on you and the union.

[00:34:24] Speaker 06:
If you want this 9A, a lot of benefits come for unions from 9A status, but some burden has to come with it, and that burden seems particularly important

[00:34:34] Speaker 06:
when you're trying to transition from 8F to 9A because you don't have any front-end assurance of employee views and in fact at the front end employees are not relevant.

[00:34:46] Speaker 06:
Their views don't matter.

[00:34:47] Speaker 01:
At the front end, but at a certain point.

[00:34:50] Speaker 06:
At the 8F end.

[00:34:51] Speaker 06:
But at the 9A, they have to be determinative.

[00:34:53] Speaker 01:
They must be determinative.

[00:34:54] Speaker 01:
But the relationship certainly changes over time.

[00:34:57] Speaker 01:
And after a series of collective bargaining agreements or center agreements and national agreements have been entered into, and there's no evidence suggesting it was anything but a stable workforce who were obtaining these various benefits and those of unions' plans,

[00:35:10] Speaker 06:
there is no suggestion that any employee... Well, this is a rule you want for all 8F to 9A transitions, and I assume you will, you won't think Congress was wrong, that one of the reasons we have the odd 8F construct is precisely because of the fluidity of workforces and the need to make advance employer union agreements.

[00:35:27] Speaker 00:
That's clear from the 59 amendments to that at 8F.

[00:35:30] Speaker 00:
Yes, I would certainly agree with the first.

[00:35:32] Speaker 06:
Okay, so the facts of this case don't matter for the board's rule.

[00:35:34] Speaker 06:
We need to have, the board's got a rule here.

[00:35:35] Speaker 06:
It doesn't have a

[00:35:37] Speaker 06:
small employer actually using a stable workforce exception.

[00:35:41] Speaker 01:
No, I know you're absolutely correct.

[00:35:46] Speaker 01:
My point was that there are various options that employees can take.

[00:35:49] Speaker 01:
They can certainly file unfair labor practice charges.

[00:35:51] Speaker 01:
They can seek the certification of the union.

[00:35:53] Speaker 06:
That's giving the union 9A benefits without the burden of proof to get, but it's entitled to those.

[00:36:03] Speaker 01:
Well, I mean, we're talking about the burden of proof and what's sufficient and when there's countervailing evidence how that must be weighed.

[00:36:09] Speaker 01:
And this court has certainly instructed that the board may not ignore evidence of, you know, a significant or substantial showing or indication of a lack of support.

[00:36:17] Speaker 01:
However, it is ultimately for the board to make these factual determinations.

[00:36:20] Speaker 01:
And when what they are confronted with

[00:36:22] Speaker 01:
after hearing an opportunity to present evidence, is an agreement in which the company, it could not be more clear in the agreements that were signed about what the company was being offered.

[00:36:33] Speaker 01:
They were being offered in 2005, in 2007, in 2010, the opportunity to review this majority support.

[00:36:40] Speaker 01:
And the board has made a determination that, again, absent something else that the company is able to show in order to respond to this.

[00:36:47] Speaker 01:
Now, of course, the burden remains with the court.

[00:36:49] Speaker 06:
At best, there's no evidence here, one way or the other.

[00:36:52] Speaker 06:
Right?

[00:36:53] Speaker 01:
Well, I mean, we have to define no evidence.

[00:36:55] Speaker 01:
I mean, no evidence outside the, as the court phrased it, any extrinsic evidence outside.

[00:37:00] Speaker 01:
Right.

[00:37:00] Speaker 06:
There's nothing else other than contract language.

[00:37:02] Speaker 01:
That's correct.

[00:37:03] Speaker 01:
I mean, this isn't- All right.

[00:37:03] Speaker 06:
So this isn't like Novon.

[00:37:04] Speaker 06:
It's unlike the others where there was positive evidence.

[00:37:06] Speaker 06:
That's right.

[00:37:07] Speaker 06:
There's not negative evidence.

[00:37:08] Speaker 06:
There's not positive.

[00:37:09] Speaker 06:
There's no evidence.

[00:37:09] Speaker 01:
That's right.

[00:37:10] Speaker 08:
This falls somewhere- Well, there's a little more, and that's what I want to get at.

[00:37:13] Speaker 08:
The board has taken the position that it's not just contract language, but the board is

[00:37:22] Speaker 08:
uh... willing to take the employers word at face value that it has independently determine this and as the board says in its fire case there are various ways the employer could have done this and there's no evidence that it wasn't done so it's sort of inverting the burden as it were and i think that's

[00:37:51] Speaker 08:
In the cases we've had to date, and as you point out, in the Supreme Court case, there wasn't a close issue, all right?

[00:38:03] Speaker 08:
There was a lot of evidence on the record, and as we said in NOVA, in stating our holding, we said despite strong record evidence, the Union may not have enjoyed majority support.

[00:38:21] Speaker 08:
In M&M, we came that same way.

[00:38:23] Speaker 08:
Then we come to allied mechanical.

[00:38:27] Speaker 08:
And in those cases, because of other things that had happened, this court was able to say, but in any event, the concerns that motivated NOVA plumbing as to the Section 7A rights don't exist here because we have evidence of the union authorization cards.

[00:38:49] Speaker 08:
So now we have a case where we have a long-standing relationship between a union and an employer.

[00:38:59] Speaker 08:
We have this language in the contract.

[00:39:06] Speaker 08:
And at least our court and allied mechanical has said there doesn't actually need to be a showing, but there has to be something to overcome

[00:39:18] Speaker 08:
sort of the presumption, which Judge Millett is getting at, is the board, the board says to us we're sticking where we have been, where the general counsel makes a prima facie case, and while the union has the burden, the employer has to show that there's something wrong with this picture.

[00:39:49] Speaker 08:
It's not a good situation for the employees.

[00:39:56] Speaker 08:
So in this case, we have an employee who testifies, but he doesn't raise this point.

[00:40:03] Speaker 08:
So here, while it may be in a number of situations, time consuming and expensive for an employee to testify.

[00:40:13] Speaker 08:
Here, he testified, but he didn't offer the evidence

[00:40:17] Speaker 08:
that would raise some question about this.

[00:40:20] Speaker 08:
So the board's saying, what, we're willing where there's contract language, there's an extended relationship over time, there's no showing of coercion, as it were, of the employer, there's no showing of coercion of the employees, other than beyond what Judge Millett was discussing with you is in the nature of the AF.

[00:40:46] Speaker 08:
relationship.

[00:40:50] Speaker 01:
I was just returning to your last point.

[00:40:52] Speaker 01:
I wasn't sure if you were done.

[00:40:53] Speaker 01:
But if you're asking me if I agree, I agree with that in principle.

[00:40:57] Speaker 01:
I mean, yes, the general counsel and the board has taken this position that this contract agreement standing alone with absent other evidence that

[00:41:06] Speaker 01:
the various parties have the opportunity to offer, as long as it meets these three requirements.

[00:41:11] Speaker 01:
And it's given the union has to offer the opportunity to review evidence majority support, and the company has to verify that it recognizes under 9A, then that is sufficient.

[00:41:20] Speaker 01:
Now, here we do have, I just wanted to clarify, because I don't want to be, I just, the last part of the answer, I don't want to be overstating it.

[00:41:27] Speaker 01:
I don't know that the board, we don't know what the board would have found here had this relationship not dated back to 1991, or had there not been three rounds of agreements

[00:41:36] Speaker 01:
containing this adequate language.

[00:41:38] Speaker 08:
But just speculate here for the moment.

[00:41:40] Speaker 08:
Suppose the employee had testified that there was this disgruntlement and that the union and the employer were not properly representing his rights.

[00:41:54] Speaker 08:
Then what do you see would have happened?

[00:41:57] Speaker 08:
The union would have had an opportunity to present evidence?

[00:42:02] Speaker 08:
Or what?

[00:42:03] Speaker 01:
Well, yes, the union would have had the opportunity to present evidence.

[00:42:06] Speaker 01:
Now, what the outcome would have been, that is something, the quantum of proof that would have satisfied the board is not something I can speculate on, if I can understand.

[00:42:15] Speaker 08:
But if in this hypothetical, the issue had been raised and the union had either responded or declined to respond, what period of time is relevant here?

[00:42:33] Speaker 08:
union support as of the date of the last agreement that was entered?

[00:42:39] Speaker 08:
Or are we going back to 2005?

[00:42:41] Speaker 01:
Well, he was saying 2005.

[00:42:45] Speaker 01:
2005 was the time when the parties

[00:42:49] Speaker 01:
or when the board found that the party's agreement met the requirements of Staunfield that triggered the 90-year relationship, and that correspondingly triggered the ongoing duty to bargain.

[00:43:00] Speaker 08:
I'm just trying to understand what the board.

[00:43:01] Speaker 08:
The board has said, basically, employer has six months to challenge this.

[00:43:05] Speaker 08:
You don't challenge it too late.

[00:43:08] Speaker 08:
But here, the union would have had to show its records, assuming it has them, back in 2005 over a decade ago.

[00:43:19] Speaker 08:
as to what union authorization cards it had, for example.

[00:43:25] Speaker 01:
Well, that's an interesting question that is in debate, I believe, between the board and this court about what 10b requires in that context.

[00:43:35] Speaker 01:
Not in the context of the challenge by the company.

[00:43:38] Speaker 01:
There's the Casale case that's discussed at the first page of the board's slip opinion, and here the board found that it didn't need to determine whether or not the evidence dating back to 2005 could be considered under 10b, because even if the board did consider it, it was insufficient.

[00:43:52] Speaker 01:
But I believe in Nova Plumbing that that is also called into question.

[00:43:55] Speaker 01:
When you're talking about not an unfair labor practice, but the formation of the agreement that is underlying the unfair labor practice, I believe Nova Plumbing has come down – or this Court has come down in a different way about what would be appropriate to consider.

[00:44:08] Speaker 01:
And I think, Your Honor, it's correct under Nova Plumbing that in the circuit that type of evidence would

[00:44:15] Speaker 01:
would be relevant and would not be time barred.

[00:44:18] Speaker 01:
Again, I think that might be a different position from what the board has announced in the past, but that wasn't an issue here.

[00:44:23] Speaker 06:
Is it reasonable for the board to rely on contract language about verification in a case like this, where there are, I don't know how many agreements there were between 1991 and when they started having employees, but that are objectively false?

[00:44:40] Speaker 01:
Well, it's unclear.

[00:44:43] Speaker 01:
I don't think I would be going out on a limb to acknowledge that the first one does seem to be objectively false, given that there were no employees.

[00:44:49] Speaker 08:
Well, it seems to be it is.

[00:44:51] Speaker 08:
The owner was the worker.

[00:44:53] Speaker 01:
Well, the owner was a worker, but there have to be two employees and whether he would be unlikely to qualify as a statutory employee under the Act.

[00:44:59] Speaker 01:
So it does seem like the first in 1991, it was not entirely accurate.

[00:45:04] Speaker 06:
Not entirely.

[00:45:05] Speaker 06:
You're putting a dispositive legal weight on the employer verification.

[00:45:11] Speaker 06:
And the employer verification is just objectively false in 1991.

[00:45:17] Speaker 06:
And I don't know when they started having enough employees to qualify for

[00:45:22] Speaker 01:
I think it was a short time thereafter.

[00:45:24] Speaker 01:
I apologize for qualifying.

[00:45:25] Speaker 01:
You are, of course, correct.

[00:45:26] Speaker 01:
In 1991, there were no employees, so there could be no verification of majority employee support for the union.

[00:45:31] Speaker 01:
That's correct.

[00:45:31] Speaker 01:
Now, how many of those afterwards?

[00:45:33] Speaker 01:
I can't say.

[00:45:34] Speaker 01:
I don't know if there was any determination on that.

[00:45:35] Speaker 01:
Then it's just boilerplate after that.

[00:45:37] Speaker 01:
Well, again, that may be the case.

[00:45:40] Speaker 01:
However, there was a significant change in that language in 2005.

[00:45:43] Speaker 01:
For the first time, I believe it was the last sentence of the opening paragraph

[00:45:47] Speaker 01:
of the agreement states that the union offered to show majority support.

[00:45:51] Speaker 06:
I'm trying to understand, I get why that was in there because of, I think that's not if you will test, but I'm trying to get why that should matter for purposes of transitioning from 8F to 9A when we have to have, we know it's not enough for a union just to say that, get 9A anywhere, that there at minimum has to be

[00:46:14] Speaker 06:
recognition through reasonable measures by the employer.

[00:46:18] Speaker 06:
And so I just don't know why that you say it's significant.

[00:46:23] Speaker 06:
Can you explain to me why you think that is significant in establishing that the employer discharged its duty?

[00:46:29] Speaker 01:
Well, I mean, if the employer believed that that was untrue, that the union would be unable to do that, the employer certainly would have the easy option of simply saying, show me the cards.

[00:46:39] Speaker 01:
And an inability to show the cards, and a statement that I'm not going to sign this 2005 assent agreement, because I'm not going to, I being the company, the company would not be able to verify the majority status.

[00:46:51] Speaker 01:
The union was not able to actually deliver on its promise to offer the showing of majority support.

[00:46:56] Speaker 01:
And if that were the case, then they can negotiate this.

[00:47:01] Speaker 01:
The company certainly did not have to enter into that agreement or to make that assertion.

[00:47:06] Speaker 02:
Would you agree with it?

[00:47:08] Speaker 02:
Let me make a statement and tell me whether you agree with it.

[00:47:11] Speaker 02:
The ALJ recognized Milba Clum and set out the holding of Milba.

[00:47:19] Speaker 02:
And then said, but I'm an ALJ for the National Labor Relations Board.

[00:47:24] Speaker 02:
And despite NOVA plumbing, I have to follow the board's policy.

[00:47:29] Speaker 02:
Yes, sir.

[00:47:30] Speaker 02:
Yeah.

[00:47:31] Speaker 02:
And then the case goes to the board.

[00:47:32] Speaker 02:
The board says we adopt the reasoning of the ALJ and we're not going to change our precedent.

[00:47:39] Speaker 01:
It's not quite that circular, if that's the question that you're essentially.

[00:47:42] Speaker 02:
No, no, no, no.

[00:47:42] Speaker 02:
I'm just.

[00:47:44] Speaker 01:
That is correct.

[00:47:45] Speaker 02:
I mean, that's what they said.

[00:47:47] Speaker 02:
But the board never tried to distinguish noble plumbing in its decision.

[00:47:54] Speaker 08:
Yeah, there's a footnote where it does.

[00:47:55] Speaker 01:
I think there is a footnote and I believe in King's Fire they also had a discussion of that and that's where the board articulated what I had said materially in response to one of your earlier questions where there is a suggestion in the court's holding that setting aside for a moment the rationale of the court that the holding is at least where here there's this type of evidence showing a lack of suggesting a lack of majority support.

[00:48:20] Speaker 01:
And so it's kind of threatening that line.

[00:48:25] Speaker 08:
All right.

[00:48:26] Speaker 08:
Anything further?

[00:48:27] Speaker 01:
No, thank you.

[00:48:27] Speaker 01:
I have one question.

[00:48:28] Speaker 08:
If we reach the second issue of timeliness, where the board's opinion misstates the facts.

[00:48:38] Speaker 08:
in the Ninth Circuit Peerless case.

[00:48:41] Speaker 08:
Does that require a remand?

[00:48:44] Speaker 01:
It was certainly regrettable that the board did this.

[00:48:46] Speaker 01:
I don't believe it requires a remand because the Peerless was not an articulation of a new standard that was then misinterpreted by the board going forward.

[00:48:54] Speaker 01:
Peerless, it was a, I believe,

[00:48:57] Speaker 01:
that what the board was doing was looking for a case that was very close on the facts and felt like it was a little bit closer than it actually was, unfortunately.

[00:49:04] Speaker 01:
However, Peerless is consistent with other decisions of the board.

[00:49:07] Speaker 01:
And in fact, the Ninth Circuit, two years later in American distributing, reached the same holding in which they said that it's not the date of an announcement or the intention to engage in some action that would later turn into an unfair labor practice.

[00:49:20] Speaker 01:
It's actually the

[00:49:23] Speaker 01:
engaging in the action itself in taking that unfair labor practice, which here arose at the earliest on May 15th and arguably well into June, which are both well within the 10 beat period.

[00:49:34] Speaker 08:
I just want to understand sort of what the argument would be that even though the board relied on peerless and misstated the facts in peerless as to whether or not there was notice,

[00:49:52] Speaker 08:
because it went further to say this is a well-established principle CEG leach, its own case in a slightly different factual context, that a, I'm trying to understand sort of under this Chenery notion, would a remand be useless or, because obviously the board would just, not obviously, but I assume the board would just strike that subordinate clause and the opinion basically remained the same.

[00:50:21] Speaker 01:
It may do that.

[00:50:22] Speaker 01:
It may find one of a number of other board decisions, some of which we cite in our brief, which stand for the same proposition.

[00:50:29] Speaker 01:
So I think we do cite a brief – a case in our brief in which there was a misarticulation of the board's pretty well-known right-line standard for discriminatory actions against union activities, and despite the fact that there was a

[00:50:42] Speaker 01:
I don't know if disarticulation is a word, but a disarticulation of the standard that that wasn't fatal to the board's position because it was consonant with other board decisions.

[00:50:50] Speaker 08:
And no remand was necessary.

[00:50:53] Speaker 01:
Pardon me?

[00:50:53] Speaker 08:
And no remand.

[00:50:54] Speaker 01:
And no remand was necessary.

[00:50:55] Speaker 08:
That's right.

[00:50:56] Speaker 08:
All right.

[00:50:57] Speaker 08:
Thank you.

[00:50:58] Speaker 01:
Thank you.

[00:51:08] Speaker 10:
Good morning, and may it please the court.

[00:51:11] Speaker 10:
I'm here to represent the union.

[00:51:12] Speaker 10:
My name is Bill Osborne.

[00:51:15] Speaker 10:
We're here to support the board's position that the decision should be enforced.

[00:51:20] Speaker 10:
And we believe that the evidence and the facts is even stronger than the board has argued.

[00:51:26] Speaker 10:
I'd like to start with the court's permission by trying to explain why this is not a novel plumbing case.

[00:51:34] Speaker 10:
Novel plumbing was an initial agreement.

[00:51:36] Speaker 10:
It didn't cite a specific statutory basis for recognition.

[00:51:41] Speaker 10:
The language was ambiguous.

[00:51:44] Speaker 10:
Where that language is ambiguous, two things happen.

[00:51:47] Speaker 10:
First, there's a presumption that it's an 8F agreement as a matter of law.

[00:51:52] Speaker 10:
And second of all, extrinsic evidence becomes admissible.

[00:51:57] Speaker 10:
The extrinsic evidence in Nova Plumbing was strong, according to the panel, strong showing that there was no support for the union at the time.

[00:52:07] Speaker 10:
This case doesn't have one agreement.

[00:52:10] Speaker 10:
It has 14 agreements.

[00:52:12] Speaker 10:
Those agreements extend over 23 years.

[00:52:15] Speaker 10:
Each and every one of those agreements specifically identifies the basis for the party's recognition as Section 9A of the National Labor Relations Act.

[00:52:23] Speaker 06:
When the agreements start in 2005 saying that the union offered evidence to the employer, right?

[00:52:31] Speaker 06:
Can you tell me what evidence was offered?

[00:52:33] Speaker 10:
Was evidence offered?

[00:52:34] Speaker 06:
No, no.

[00:52:35] Speaker 06:
The contracts say that the union offered evidence.

[00:52:39] Speaker 10:
The record doesn't state one way or the other whether evidence was offered.

[00:52:41] Speaker 10:
I have no idea.

[00:52:42] Speaker 06:
No, the contract says that it was offered.

[00:52:44] Speaker 06:
I hear that.

[00:52:44] Speaker 06:
I hear that.

[00:52:45] Speaker 10:
I just don't know in fact whether that was done or not done.

[00:52:49] Speaker 10:
The record is silent on that.

[00:52:50] Speaker 06:
OK, so we don't even know whether in fact that proffer of evidence ever actually happened.

[00:52:55] Speaker 10:
No, but we do know that the law in this circuit and the Supreme Court and at the NLRB is an offer to show

[00:53:03] Speaker 10:
and the employer's agreement that you did show is sufficient to support 9A recognition.

[00:53:09] Speaker 06:
Not by itself.

[00:53:11] Speaker 06:
Not in this circuit.

[00:53:12] Speaker 10:
I believe it is, Your Honor.

[00:53:13] Speaker 06:
We require reasonable efforts by the employer, not just an author.

[00:53:17] Speaker 10:
I wouldn't want to disagree with Your Honor as to what the law of the D.C.

[00:53:21] Speaker 10:
Circuit is, but my understanding is that Section 9A, Allied Mechanical, for example, applies to the construction industry to the same extent

[00:53:31] Speaker 10:
as it does outside the construction industry.

[00:53:33] Speaker 10:
9A applies everywhere the same.

[00:53:35] Speaker 10:
These are 9A agreements.

[00:53:37] Speaker 10:
There are plenty of cases going back decades of the different kinds of showing or offers to show inside and outside the construction industry which are found to support a 9A agreement.

[00:53:49] Speaker 10:
To get to a point that Judge Randolph made, how does ladies garment workers work into this?

[00:53:55] Speaker 10:
Let's suppose in 2005 or 1991, a union went to an employer and said, I want you to sign this explicit 9A agreement.

[00:54:05] Speaker 10:
No ambiguity about it.

[00:54:07] Speaker 10:
We represent blah, blah, blah.

[00:54:09] Speaker 10:
Employer signs it.

[00:54:11] Speaker 10:
Within six months, ladies garment workers leaves that agreement vulnerable to challenge.

[00:54:18] Speaker 10:
It's an unfair labor practice, and it invalidates the contract if there's no sufficient majority support for that

[00:54:25] Speaker 10:
9A recognition.

[00:54:27] Speaker 10:
So to the extent that anyone thinks that we're contending that ILGWU ladies garment workers doesn't apply here, but that's not true at all.

[00:54:34] Speaker 10:
It does apply to the same extent it applies in other 9A contexts.

[00:54:38] Speaker 10:
And it did apply in in novel plumbing.

[00:54:41] Speaker 10:
And there wasn't an ambiguous contract.

[00:54:43] Speaker 10:
There was no 9A in that agreement.

[00:54:46] Speaker 10:
And the extrinsic evidence, which became admissible, disproved

[00:54:52] Speaker 10:
the contention that any contention that that was a 9-A agreement.

[00:54:55] Speaker 02:
So this case is... Pardon me, sir?

[00:54:58] Speaker 02:
Under NOVA, who has the burden of proof?

[00:55:00] Speaker 02:
Is it the employer that must show lack of majority support, or is it the union and board council that must show majority support?

[00:55:09] Speaker 10:
If I can...

[00:55:10] Speaker 10:
answer it this way, where the language, first of all we're in the construction industry, point one.

[00:55:16] Speaker 10:
Point two, where the language is unclear as it was there.

[00:55:20] Speaker 10:
The burden is on the union and the employer to establish that it's not an ADEF agreement.

[00:55:27] Speaker 10:
That is, there's two parts to that, and this is what I think sometimes people misunderstand.

[00:55:32] Speaker 02:
But that's another way of saying that the burden is on the union and the employer or the board council to establish that there's majorities.

[00:55:40] Speaker 10:
No, there's two parts to this, and let me try and be more clear.

[00:55:43] Speaker 10:
First of all, where the contract's ambiguous, the moving party has to show that the party's intended a 9A agreement.

[00:55:53] Speaker 10:
And you can do that from language or external evidence.

[00:55:57] Speaker 10:
Once you establish, and this is something that I think gets lost sometimes, once you establish a 9A agreement, that doesn't make it a valid 9A agreement.

[00:56:07] Speaker 10:
That means the party's intended 9A.

[00:56:09] Speaker 10:
Okay, but if they don't have the support, then it's an invalid 9A agreement.

[00:56:13] Speaker 10:
And our cases, the cases we cite in our brief show that if suppose there was an invalid 9A agreement.

[00:56:21] Speaker 10:
Says 9A, no employee support.

[00:56:24] Speaker 10:
That's an invalid 9A agreement.

[00:56:26] Speaker 10:
It can never be an 8F agreement.

[00:56:28] Speaker 10:
ADEF on its face and board law going back to the fifth to the sixties says, ADEF says if an invalid employer supported agreement can never be an ADEF agreement.

[00:56:41] Speaker 10:
So the argument that... Say that once more so I'm clear.

[00:56:46] Speaker 08:
You're saying that if there's, if the employer and the union

[00:56:52] Speaker 08:
sign an agreement that says this, they have a nine a relationship and it's collusive, right?

[00:56:59] Speaker 08:
And it's improper.

[00:57:01] Speaker 08:
Correct.

[00:57:03] Speaker 08:
Then

[00:57:04] Speaker 08:
The relationship between the two parties can never be an 8F?

[00:57:09] Speaker 10:
That's what 8F says, and that's what the cases we cite say.

[00:57:12] Speaker 10:
8F says an employer-supported agreement cannot be an 8F agreement.

[00:57:17] Speaker 08:
So that leaves the parties, what, to renegotiate?

[00:57:20] Speaker 10:
It leaves the parties with an unfair labor practice, an unlawful agreement, and an invalid agreement.

[00:57:28] Speaker 10:
And that doesn't ever, so that when a company comes here and says, well, you know, there's not majority support for a 9A agreement, and therefore it's an 8F agreement, that's a non sequitur.

[00:57:40] Speaker 10:
It just doesn't get there.

[00:57:42] Speaker 10:
And I'm not suggesting in this case or no... I'm sorry, what case says that?

[00:57:47] Speaker 04:
Pardon me?

[00:57:48] Speaker 04:
What case says that?

[00:57:49] Speaker 10:
That you can't be... The cases are in our brief, and the statute says that it's on its face.

[00:57:55] Speaker 10:
The statute says that.

[00:57:56] Speaker 10:
And unions are in the business of protecting employee rights.

[00:58:01] Speaker 10:
I would never come here and ask the court to disregard ladies' garment workers.

[00:58:07] Speaker 10:
That's critical.

[00:58:09] Speaker 10:
But the employees never complained about it.

[00:58:12] Speaker 10:
This went on for 23 years, 14 agreements.

[00:58:16] Speaker 10:
No one complained about it until it came up as a lawyer's defense going on for a labor practice charge.

[00:58:27] Speaker 10:
I guess that I'm running out of points I want to make, but I really want to answer your questions if you have any, otherwise I think I have a red light here.

[00:58:36] Speaker 08:
So in response, just so I'm clear, in response to the line of questions Judge Millett was pursuing earlier, your point is that in that six month period, this 9A agreement is subject to being attacked

[00:58:57] Speaker 08:
and determined to be invalid.

[00:58:59] Speaker 10:
Absolutely.

[00:59:00] Speaker 10:
No question about it.

[00:59:03] Speaker 10:
And if it's determined to be invalid, collusive, or however you want to characterize it, it's illegal.

[00:59:10] Speaker 10:
It's an unfair labor practice.

[00:59:11] Speaker 08:
No question.

[00:59:12] Speaker 08:
But the point is that if the parties sign an agreement that says their relationship is a 9A agreement, and there is no challenge to that assertion

[00:59:28] Speaker 08:
and we're in the seventh month, eighth month, it is a valid 9A agreement absent

[00:59:37] Speaker 08:
something else that we don't have here?

[00:59:39] Speaker 10:
Unless and until a dessert is filed.

[00:59:41] Speaker 10:
Unless and until the employer files in our impetition.

[00:59:44] Speaker 10:
And that is Brian manufacturing.

[00:59:46] Speaker 10:
That's 1960s Supreme Court law reversing the DC Circuit, I might add.

[00:59:51] Speaker 10:
But that's Brian manufacturing.

[00:59:53] Speaker 10:
And if Brian manufacturing applies to the same extent in the construction industry as otherwise, where we have

[01:00:01] Speaker 10:
plainly a 9A agreement.

[01:00:03] Speaker 10:
If it's ambiguous, then we get the novel plumbing.

[01:00:05] Speaker 10:
You say, wait a minute, what is this?

[01:00:07] Speaker 06:
Well, we're in a situation where, let me ask my predicate.

[01:00:12] Speaker 06:
Do you agree that prior to 2005, that this was an 8F, or in 1991, did this start as an 8F relationship?

[01:00:20] Speaker 10:
No.

[01:00:21] Speaker 06:
It started as a 9A relationship.

[01:00:22] Speaker 06:
How could it do that when there's no employees?

[01:00:24] Speaker 10:
I don't know what happened back then.

[01:00:26] Speaker 06:
No, no, no, we do know.

[01:00:27] Speaker 06:
We do know there are no employees, and we are objectively

[01:00:30] Speaker 06:
I mean, what I'm asking is, does this framework that you want to embrace apply when the claim of 9A says, although I don't think it didn't say 9A in 1991.

[01:00:45] Speaker 06:
I don't think it said 9A in 1991.

[01:00:49] Speaker 06:
It did.

[01:00:49] Speaker 10:
It did.

[01:00:50] Speaker 06:
Where's that?

[01:00:51] Speaker 06:
Sorry.

[01:00:52] Speaker 10:
It was explicitly a 9A agreement.

[01:00:54] Speaker 06:
Where is that language?

[01:00:56] Speaker 06:
Oh, no, I see it.

[01:00:57] Speaker 06:
You're right.

[01:00:57] Speaker 06:
You're absolutely right.

[01:00:58] Speaker 06:
OK, so claim it.

[01:00:58] Speaker 06:
All right, so they claim it.

[01:01:00] Speaker 06:
I'm on, I think it's JE-93?

[01:01:02] Speaker 06:
Thank you.

[01:01:04] Speaker 06:
You're right about that.

[01:01:04] Speaker 06:
But then it's objectively false.

[01:01:07] Speaker 06:
It is objectively false.

[01:01:08] Speaker 06:
Well, let's suppose it is for argument's sake.

[01:01:09] Speaker 06:
And then I'm not going to suppose there's no employer.

[01:01:11] Speaker 06:
Do you have evidence that there was employees?

[01:01:12] Speaker 10:
No, I'm saying that that's what the employer asserted.

[01:01:14] Speaker 10:
Let's suppose that that agreement was signed when there were no employees.

[01:01:18] Speaker 10:
The answer to your question, Judge, is in the consent.

[01:01:20] Speaker 06:
So there's nobody to challenge it.

[01:01:23] Speaker 10:
in the construction industry and outside the construction industry.

[01:01:28] Speaker 10:
A premature grant of 9A recognition.

[01:01:32] Speaker 10:
They have one employee, they have no employees.

[01:01:36] Speaker 10:
in the situation you posit, is an 8A2 violation in the construction industry and outside the construction.

[01:01:42] Speaker 06:
It cannot be an 8F.

[01:01:43] Speaker 06:
OK, but then so does this framework that you want to have that insulates the 9A when it is an attack of the six months up high?

[01:01:52] Speaker 06:
Sure it does.

[01:01:54] Speaker 06:
What case would say that when you have something that from the beginning on its face is a false claim of 9A status as a matter of law and fact,

[01:02:04] Speaker 06:
that still requires someone to challenge it within six months when there's nobody to challenge it and then all these protections attach.

[01:02:12] Speaker 10:
I think the six month limitation, I don't have a case on hand.

[01:02:15] Speaker 10:
I have cases that that's an 8-8-2 violation and an 8-B violation.

[01:02:19] Speaker 10:
I'm sure there are cases, and I'd be glad to submit that to the court afterwards, that say 10-B applies, but it only applies when an employee is adversely affected.

[01:02:29] Speaker 10:
It doesn't apply in a vacuum.

[01:02:31] Speaker 10:
That is to say, let's suppose they sign an agreement on January 1 that says 9A, and there's no basis for the 9A, so it would be an 8A too.

[01:02:40] Speaker 10:
The following November, three employees are walking in the office and they say, well, you're subject to a 9A agreement.

[01:02:46] Speaker 10:
They say, what?

[01:02:47] Speaker 10:
How did that happen?

[01:02:48] Speaker 10:
I don't hear about that.

[01:02:50] Speaker 10:
And then the six-month period would start to begin.

[01:02:53] Speaker 10:
And I don't think there's any way to make those employees complain about a violation of their Section 7 rights until, A, they're employees and, B, they've been adversely affected.

[01:03:03] Speaker 10:
I can find those cases.

[01:03:05] Speaker 10:
I didn't reach a separate debate, but I'm sure that's true.

[01:03:08] Speaker 10:
And certainly, it's not, no one would argue, well, there's no way to remedy this because there were no employees.

[01:03:15] Speaker 10:
I wouldn't want to try and convince anybody of that proposition.

[01:03:17] Speaker 10:
Thank you.

[01:03:18] Speaker 06:
What do we do with a small problem that this is not the rationale that the board gave?

[01:03:25] Speaker 10:
I'm not disagreeing with the board.

[01:03:26] Speaker 10:
I'm supporting the board.

[01:03:27] Speaker 10:
The board found a 9A.

[01:03:28] Speaker 06:
It's an entirely different argument.

[01:03:30] Speaker 10:
Well, I'm adding to the board's argument.

[01:03:33] Speaker 10:
The board said it was a 9A relationship as of 2005.

[01:03:36] Speaker 10:
We completely agree.

[01:03:39] Speaker 10:
There's no argument about that.

[01:03:40] Speaker 10:
What I'm saying is, in addition to that, there's 9A agreements going back to 1991, all of which are 9A agreements.

[01:03:48] Speaker 10:
all of which are expressed, none of which are ambiguous.

[01:03:51] Speaker 10:
And that supports the board position.

[01:03:54] Speaker 10:
I understand there are limits to what an intervener is allowed to present.

[01:03:58] Speaker 10:
And I'm not changing the issues.

[01:04:00] Speaker 10:
I'm trying, at least, to get the boards back on this, to say this case is even stronger.

[01:04:05] Speaker 10:
And this is not a Nova Plumbing case.

[01:04:07] Speaker 10:
This is not an initial agreement.

[01:04:09] Speaker 10:
This is not ambiguity.

[01:04:11] Speaker 10:
And there is no external evidence of anything.

[01:04:14] Speaker 10:
The best evidence of the case is the amicus.

[01:04:16] Speaker 10:
Blackwell testifies.

[01:04:19] Speaker 02:
Was there any, did anybody argue, certainly the board didn't say anything and the ALJ didn't say anything, that if this is an 8F agreement, then it's invalid?

[01:04:32] Speaker 10:
I'm sure we argued that it couldn't be an 8F agreement.

[01:04:35] Speaker 10:
It could only be a 9A agreement, but I don't believe that I heard that argument made, Your Honor.

[01:04:41] Speaker 10:
I'm not positive, but I don't believe that I did.

[01:04:44] Speaker 02:
I thought I heard that argument from you just now.

[01:04:48] Speaker 10:
These, I hope now, let's backtrack.

[01:04:51] Speaker 10:
Maybe I could have misunderstood your question.

[01:04:55] Speaker 10:
We argued to the board and to this court that this is a 9A relationship.

[01:05:02] Speaker 10:
It has been for 20-some years, OK?

[01:05:05] Speaker 10:
And that it cannot be an 8F relationship because, and we cited the cases in there in the brief someplace, it cannot be an 8F relationship because even if it was an unlawfully assisted

[01:05:16] Speaker 10:
9a relationship, it would revert to an 8a2 violation and that is precluded by 8f.

[01:05:21] Speaker 10:
So it can never be an 8f relationship, whatever else it might be.

[01:05:24] Speaker 10:
And whatever support may or may not have been there, whatever collusion.

[01:05:28] Speaker 02:
Did I answer your question that time, Judge?

[01:05:30] Speaker 02:
If it's a 9a, if it's not a 9a agreement, who cares what it is?

[01:05:36] Speaker 02:
The employees care what it is.

[01:05:38] Speaker 02:
The employer can walk away from it after the term expires.

[01:05:42] Speaker 02:
And that's the only issue in this case.

[01:05:44] Speaker 10:
No, there are all kinds of consequences and benefits to 9A.

[01:05:49] Speaker 10:
By the way, this is not a decisive factor.

[01:05:52] Speaker 02:
If it's not a Section 9A agreement, if it's an illegal 9A agreement, then who cares whether it reverts to an 8F?

[01:06:01] Speaker 02:
I mean, the term is expired and the employer can walk away.

[01:06:03] Speaker 10:
Well, there would be remedies.

[01:06:05] Speaker 10:
That would be an unfair labor practice and interference with the employee's rights.

[01:06:09] Speaker 10:
There would be board proceedings.

[01:06:10] Speaker 10:
I mean, you don't...

[01:06:12] Speaker 05:
What rights attach to a non-9A, not anything else agreement?

[01:06:17] Speaker 10:
If a 9A relationship was imposed unlawfully, the employee's rights under the statute are grossly violated.

[01:06:26] Speaker 10:
And I'd like you to believe that we're not in the business of doing that.

[01:06:30] Speaker 10:
And by the way, this business about bargaining, you note that at the expiration of the most recent contract, the employer didn't say,

[01:06:37] Speaker 10:
pre-hire agreement, I'm going home.

[01:06:39] Speaker 10:
They bargain and bargain and bargain.

[01:06:41] Speaker 10:
Everybody understood this was a bargaining 9A relationship until it got to the end for labor practice, Judge.

[01:06:47] Speaker 10:
And that's where we are.

[01:06:49] Speaker 10:
But no ambiguity, 14 agreements, every one of which are explicit.

[01:06:57] Speaker 10:
I just can't imagine that the board's decision, which we're supporting, isn't supported by overwhelming facts in the law.

[01:07:07] Speaker 10:
And I'm happy to end my contribution.

[01:07:11] Speaker 08:
All right.

[01:07:11] Speaker 08:
Thank you.

[01:07:14] Speaker 08:
Council for petition.

[01:07:19] Speaker 09:
Thank you.

[01:07:20] Speaker 09:
Just a few comments.

[01:07:22] Speaker 09:
In regard to the issue of an objection to the limitation on evidence, I just want to point to page 28 where I did mention the ladies garment workers.

[01:07:33] Speaker 09:
That was after an objection from counsel for the general counsel and the judge limited me to one question stating that the only issue was whether the contract language would be enough.

[01:07:44] Speaker 06:
All right, you limited yourself to the one question.

[01:07:48] Speaker 06:
as I read that page.

[01:07:50] Speaker 06:
I just have this one question I want answered.

[01:07:51] Speaker 06:
That was you, not the ALJ.

[01:07:53] Speaker 09:
Judge Moll said so he can answer the question, but then I want to move on from there.

[01:07:57] Speaker 06:
Just repeating your words back to you.

[01:07:58] Speaker 06:
Right.

[01:07:59] Speaker 06:
Pass it on.

[01:08:00] Speaker 08:
Yes, what's next?

[01:08:01] Speaker 09:
There was dialogue back and forth.

[01:08:02] Speaker 08:
We've got your point about citing ladies' garment works.

[01:08:07] Speaker 09:
With regard to the rights of employees to challenge an improperly granted recognition under 9A,

[01:08:14] Speaker 09:
Section 8A2 charges or Section 8B1A charges against a union, those are complicated things.

[01:08:23] Speaker 09:
And the convenience of an 8F relationship is that an employer in a construction union can sign up any day of the week and begin a bargaining relationship.

[01:08:34] Speaker 09:
the employees aren't necessarily going to know about that agreement or the technicalities of a relationship.

[01:08:42] Speaker 06:
But you don't represent the employees.

[01:08:45] Speaker 06:
You're the employer and so you signed it, knew what your client knew what they were signing and your client had six months

[01:08:53] Speaker 06:
later to go, wait, that says 9A, that's wrong, and did not meet that deadline.

[01:08:58] Speaker 06:
So on what basis does your client show up now 20 years after the fact and go, actually it wasn't a valid 9A?

[01:09:08] Speaker 09:
The basis that the union treated this as an ADEF, that they came to my client with a termination letter to terminate the agreement, that they sought to advise the client of withdrawal liability, assuming that the bargaining relationship came to an end.

[01:09:28] Speaker 09:
And that assumes the union was aware that there was an ADEF relationship as well.

[01:09:35] Speaker 09:
Declula, cited by

[01:09:38] Speaker 09:
the board and recognized by this court, presumes Section 8F relationships absent something more in the way of majority support.

[01:09:46] Speaker 06:
What does it take to trigger that presumption of 8F relationship?

[01:09:49] Speaker 06:
Do you have to have an agreement that is either silent or says 8F?

[01:09:54] Speaker 09:
You should be an employer in the construction industry and if you sign an agreement, it's the fact that that agreement exists.

[01:10:04] Speaker 06:
Really?

[01:10:04] Speaker 06:
There's a presumption

[01:10:07] Speaker 06:
Even if the agreement says 9A all over, just because you're in the construction industry, it's presumed to be 8F anyhow?

[01:10:12] Speaker 09:
Well, that's where the issues have arisen under board law.

[01:10:18] Speaker 09:
And we've had litigation here, such as NOVA.

[01:10:21] Speaker 09:
But the decadal presumption is that it's 8F.

[01:10:26] Speaker 09:
And the conduct of the union suggests that it was 8F.

[01:10:33] Speaker 09:
by the manner in which they approach the company in terminating the agreement and advising them of withdrawal liability.

[01:10:40] Speaker 09:
I think while I do represent the employer, I think suggesting that the onus is now on the employees to understand and file Section 882 charges is honestly unrealistic.

[01:10:55] Speaker 06:
No, there's a different point from your clients sign these agreements over all these years as 9A and then

[01:11:02] Speaker 06:
But it didn't like it.

[01:11:04] Speaker 06:
Said it's not 9A.

[01:11:05] Speaker 06:
20 years after the six-month period for challenging 9A status expired.

[01:11:10] Speaker 09:
It's not so much that we didn't like it, it's that we wanted to talk about an agreement that would have a different health plan.

[01:11:16] Speaker 09:
And those negotiations, frankly, didn't go anywhere.

[01:11:22] Speaker 09:
It's a different chemistry from, say, the Raymond Interior Systems case, where you have rival unions, and the union that lost out on the work understood that it could file a Section 8A2 charge to challenge a wrongful 9A recognition.

[01:11:39] Speaker 09:
This is putting a lot of burden on employees after they've lost the ability to choose whether to have representation.

[01:11:48] Speaker 02:
What do you say, if I understand Council for the Union, says, look, the question here is not whether this is an 8F agreement.

[01:11:55] Speaker 02:
The party's clearly intended it to be a 9A agreement, and the issue is whether this is a valid 9A agreement.

[01:12:04] Speaker 09:
I think that it's putting too much power in the hands of the union and the employer to make a choice for employees.

[01:12:12] Speaker 02:
Was that part of the general counsel's presentation or the union's presentation before the board, that argument?

[01:12:22] Speaker 09:
Not so explicitly.

[01:12:24] Speaker 09:
took the argument from the board, the general counsel, as well as the union to be, this contract language is here, it must be true, therefore impose a 9A relationship and the attendant obligations.

[01:12:34] Speaker 02:
The focus was not on the, whether it's 9A or 8F, I mean the question was, it can't be 9A if they don't prove majority support.

[01:12:44] Speaker 02:
By that I mean the general counsel and the union.

[01:12:47] Speaker 09:
That was certainly our view.

[01:12:52] Speaker 09:
With regard to the timeliness defense and whether the Casale case has any impact on this, I think again it's a question of bad policy to impose 10b on the creation of an unlawful 9a relationship because it again assumes that employees are going to know to challenge or it assumes that an employer is going to blow the whistle on itself.

[01:13:18] Speaker 09:
That's very unlikely to happen.

[01:13:20] Speaker 09:
So those labor unions that will put into form agreements a 9A clause really stand to benefit from that sort of what I will refer to as boilerplate.

[01:13:33] Speaker 09:
Unless the court has any questions, I'll conclude my remarks.

[01:13:37] Speaker 08:
Thank you very much.

[01:13:38] Speaker 09:
Thank you.

[01:13:38] Speaker 08:
We'll take the case under advisement.