[00:00:01] Speaker 00:
Case number 15-1039 at L. Hawaiian Dredgen Construction Company, Inc.

[00:00:06] Speaker 00:
Petitioner vs. National Labor Relations Board.

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Mr. Maher for the petitioner.

[00:00:11] Speaker 00:
Mr. Casterly for the respondent.

[00:00:13] Speaker 00:
Mr. Rosenfeld for the intervener.

[00:01:06] Speaker 07:
Good morning, Your Honors.

[00:01:07] Speaker 07:
My name is Barry Maher, and I represent Hawaiian Dredging, the petitioner in this action.

[00:01:13] Speaker 07:
The company's position is that the board's decision is not supported by substantial evidence and that enforcement should be denied.

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The issue is the company's treatment of welders after the company lawfully terminated a collective bargaining agreement and lawfully suspended its operations.

[00:01:36] Speaker 07:
According to the board, the welders were unlawfully terminated because they were affiliated with the Boilermakers Union.

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As the decision states, this case turns on motive.

[00:01:52] Speaker 07:
The general counsel has the burden of establishing motive.

[00:01:56] Speaker 05:
I don't think... Turns on what?

[00:01:57] Speaker 07:
I didn't.

[00:01:58] Speaker 05:
If you could repeat your statement.

[00:01:59] Speaker 07:
Yes.

[00:02:00] Speaker 07:
The case turns on motive.

[00:02:03] Speaker 07:
And the general counsel has the burden to establish motive in this case.

[00:02:09] Speaker 04:
I'm just trying to understand some factual things about how this 8F relationship works.

[00:02:16] Speaker 04:
When you have an agreement with a union for specific craftspeople, do you actually have individual employment contracts with each welder or do you essentially have the agreement with the union and then they just send out whatever welder when you need a welder?

[00:02:36] Speaker 07:
Correct.

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There's one collective bargaining agreement, and that covers all workers.

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And when the company needs a worker, it contacts the union.

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The union dispatches a worker to the company, and then the worker works under that collective bargaining agreement.

[00:02:51] Speaker 04:
So you don't have any direct employment relationship with any individual welder?

[00:02:55] Speaker 07:
Correct.

[00:02:57] Speaker 07:
It's all under the collective bargaining agreement and pursuant to the collective bargaining agreement.

[00:03:02] Speaker 04:
But how, I'm trying to understand the concept here of either terminating or laying off welders.

[00:03:09] Speaker 04:
How are you supposed to lay someone off if they don't work for you?

[00:03:14] Speaker 04:
You just aren't working with that union anymore.

[00:03:18] Speaker 07:
The board, we view this as a layoff because that's how the company has always treated workers when there's not work to be done.

[00:03:27] Speaker 04:
You're laying off the union?

[00:03:30] Speaker 04:
Or who are you laying off because you don't actually employ these welders directly yourself?

[00:03:35] Speaker 04:
It's a lot of odd terminology here for essentially, I guess, what is the hiring hall.

[00:03:41] Speaker 07:
We actually do directly employ the laborers.

[00:03:46] Speaker 07:
I would say it's in the nature of a temporary employment.

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The labor is requested.

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It's dispatched from the union hall to the company.

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The company puts the worker on their payroll and treats them just as they would an employee in the ordinary course.

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And then when the work is completed, they send the worker back to the hiring hall.

[00:04:09] Speaker 04:
And so imagine you had an ongoing relationship with this union and on Monday you need five welders and they send five welders out and for two days I guess they're your temporary employees while they're doing your work.

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And then that work

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finishes and next week you'll need more welders.

[00:04:28] Speaker 04:
We don't need any more for Wednesday, Thursday, Friday.

[00:04:31] Speaker 04:
Are those welders deemed laid off?

[00:04:33] Speaker 04:
Yes.

[00:04:33] Speaker 04:
Wednesday, Thursday, Friday?

[00:04:35] Speaker 07:
Yes.

[00:04:36] Speaker 07:
Either, you know, in this case, quite frankly, the welders were long time, many of them were long time employees because the company had a continuing need for welders so they might work on job A Monday through Thursday and then on Friday they might be switched to job B and the next week they might go to job C.

[00:04:54] Speaker 07:
So there was, with a number of the welders, a long-term employment relationship where they were continuously employed, but these welders were also laid off if there was not work to be done.

[00:05:08] Speaker 07:
They were laid off here because they were members of the union, is that correct?

[00:05:15] Speaker 07:
No, that is not correct.

[00:05:17] Speaker 07:
They were laid off because on February 17th, the company

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was advised by the National Labor Relations Board that there was not a contract in effect.

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The company, the parties had negotiated what they thought was an agreement.

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The parties treated it as an ongoing agreement.

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There were two disputed terms and the company filed an unfair labor practice to confirm its understanding of the negotiations.

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The board's response was that there's not a complete agreement.

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There is no agreement.

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So at that point, the company had the right, which it exercised, to terminate the collective bargaining agreement and the relationship.

[00:06:02] Speaker 09:
Since it no longer had a contract... Hold on, when you say... But the company, as I understand your position, went out of...

[00:06:11] Speaker 09:
That line of work, because we're not having the bargaining at that point, is that your position?

[00:06:17] Speaker 07:
No.

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Only temporarily did it suspend.

[00:06:20] Speaker 09:
Only temporarily.

[00:06:22] Speaker 09:
You went back into it with an agreement with the pipefitters?

[00:06:26] Speaker 07:
Pipefitters, correct.

[00:06:28] Speaker 09:
So would it not still be correct to say that whether you call it termination or layoff, you severed the relationship with those long-time employees because they were members of the subject union here, right?

[00:06:41] Speaker 07:
No.

[00:06:43] Speaker 07:
It was not because they were, it was not because they were members of the Union.

[00:06:46] Speaker 09:
Had they been members of the Pipe Fetters Union, would they have continued to work for you?

[00:06:51] Speaker 07:
Well, um... Would they have continued?

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They could have if they were members of the Pipe Fetters Union.

[00:06:55] Speaker 09:
So why then is it not accurate to say that they were terminated or laid off, whichever verb is used, because of their affiliation with the Soviet Union?

[00:07:04] Speaker 07:
Under both collective bargaining agreements, both the Boilermakers and the Pipefitters, the workers had to be referred from the respective union.

[00:07:13] Speaker 07:
So prior to February 17th, when the company needed workers, it sought them from the Boilermakers union.

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After February 23rd, when it entered into an agreement with the Pipefitters, it had to go to the Pipefitters

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for workers.

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So in answer to your question, the pipe fitter could have worked, but he would have had to have been referred by the pipe fitter's union.

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Both collective bargaining agreements, which are in evidence, are very specific that they're the exclusive source for referral, and both of them require that any worker that's dispatched

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be dispatched from that union, there is an exception.

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If the union is unable to dispatch a worker within a given period of time, in the Boilers Agreement it was 48 hours, then the company is free to pursue a worker from a different source.

[00:08:09] Speaker 04:
The other question I had is I understand that the contract or the bargaining agreement with the union here was not actually with your company, but with this trade association that I guess consists of Hawaiian Dredging and two other companies?

[00:08:24] Speaker 07:
Is that correct?

[00:08:26] Speaker 07:
Actually, Hawaiian Dredging did have a contract with the Boilermakers.

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The contract was negotiated through the association, but Dredging was an actual signatory to the contract.

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So the association represented the three contractors in its negotiations with the... The letter terminating the agreement was from the association.

[00:08:49] Speaker 04:
The association does not intend to use the union.

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It doesn't say Hawaiian Dredgen.

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doesn't intend to use the Union.

[00:08:56] Speaker 07:
That's true.

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And the Association does represent all three companies, and it is able to bind all three companies.

[00:09:04] Speaker 04:
Did the other two companies terminate their work at the same time with the Boilermakers?

[00:09:09] Speaker 07:
One of them did.

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I'm not sure about the third.

[00:09:15] Speaker 04:
Could you ever argue to the Board that the fact that another company did the exact same thing at the same time for the same reason was part of your evidence as to why you didn't have an impermissible intent?

[00:09:24] Speaker 07:
We did.

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This was when the initial unfair labor practice charge was filed.

[00:09:33] Speaker 07:
We did present that evidence to the board and initially the board dismissed the charge.

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It later reinstated the charge and that's what led to the hearing in this case.

[00:09:44] Speaker 04:
But you didn't raise that point again with the ALJ.

[00:09:47] Speaker 07:
Correct.

[00:09:49] Speaker 07:
I would point to one piece of evidence about layoffs, since that was an issue that's been raised by two of the judges.

[00:09:58] Speaker 07:
I think the best evidence of what the company's practice was was the evidence provided by one of the alleged discriminatees.

[00:10:06] Speaker 07:
And this is at the appendix, page 96.

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The employee was asked a question, in other times that you had been laid off, had you been told that you would be recalled if work was available?

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The employee answered, we just get our layoff paper and go on unemployment.

[00:10:25] Speaker 07:
The next question, okay, and then you would be redispatched from the boiler makers.

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The answer, yeah, whoever calls, whatever company called, then we get dispatched from the union.

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And were you, did the company provide any indication that the same process would occur after February 17th, excuse me, after the February 17th layoff?

[00:10:48] Speaker 07:
The answer was no.

[00:10:49] Speaker 07:
The next question, did they say anything to make it seem different?

[00:10:54] Speaker 07:
No.

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So the company did the same with this layoff.

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It had done with all previous layoffs.

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When there wasn't work to be done, it sent the employees back to the hiring hall.

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The question of whether that's termination or a layoff, it was a discontinuation of the employment relationship.

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That's true.

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But it was not because they were members of a union

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The credited testimony in this case was that the company worked under a collective bargaining agreement and only under a collective bargaining agreement.

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So when they did not have a collective bargaining agreement on February 17th, they laid everybody off who was associated with welders.

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Now the board, when it found Animus, said that the company laid off the 13 welders and only the 13 welders.

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But that is incorrect.

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The company also laid off the statutory supervisor who oversaw those welders.

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So it's our position that that finding that they laid off only to the boiler makers was crucial to their finding of animus.

[00:12:10] Speaker 09:
And animus... Does the record reflect whether that supervisor was recalled when you began to resume the work with the use of another hiring

[00:12:19] Speaker 07:
Yes, he went to, he was recalled after the pipe fitters agreement was entered into.

[00:12:25] Speaker 04:
Because, did he meet the, did he join the pipe fitters and pass their test or did he get to come back automatically?

[00:12:31] Speaker 07:
He was supervised, he could not have gone in.

[00:12:33] Speaker 07:
Well, he can be covered by the collective bargaining agreement, but he was a statutory supervisor that was alleged in the complaint and that was admitted by the company.

[00:12:42] Speaker 04:
Were you able to bring him back directly or did the pipe fitters have some say in whether he could come back?

[00:12:47] Speaker 07:
He went through the pipe fitter's process, he was qualified as a pipe fitter, and then he was again designated as a supervisor once he was qualified as a pipe fitter.

[00:12:58] Speaker 09:
So he could have been a member until he was re-designated as a supervisor, is that it?

[00:13:02] Speaker 09:
He could have, yes.

[00:13:10] Speaker 04:
When you brought up Darlington, are you asserting an independent sort of Darlington claim as a barrier to, you know, this is just something you're entitled to do, we don't even get to right line or Great Dane, or are you using Darlington to underscore your argument that it was permissible to temporarily terminate the work for the week until you had a new contract?

[00:13:38] Speaker 07:
We actually don't need Darlington for that.

[00:13:40] Speaker 04:
I'm just asking you which way you use it.

[00:13:43] Speaker 04:
You do use it in your race, and I wasn't quite clear how you were using it.

[00:13:46] Speaker 07:
The board acknowledged in this decision, both the board and the dissent, that we did have the management right to discontinue the work.

[00:13:55] Speaker 07:
The only issue from the board's perspective was whether we had the right to terminate the employees.

[00:14:02] Speaker 07:
And they said, you had the right to suspend the work,

[00:14:08] Speaker 07:
You had the right to lay off the employees, but you couldn't terminate them.

[00:14:14] Speaker 07:
But there's no right to recall, as the board relied on.

[00:14:20] Speaker 07:
They pulled that, really, out of thin air.

[00:14:24] Speaker 07:
The statute certainly doesn't have a right to recall.

[00:14:26] Speaker 09:
The Doherington really has nothing to do with that, right?

[00:14:30] Speaker 09:
Correct.

[00:14:30] Speaker 09:
Because I remember Doherington, there was no recall involved.

[00:14:33] Speaker 07:
Correct.

[00:14:34] Speaker 09:
They shut down the wheel.

[00:14:35] Speaker 02:
Permanent.

[00:14:39] Speaker 07:
But with respect to the right to recall, it's not an effective bargaining agreement.

[00:14:43] Speaker 07:
It was not the company's practice, as that employee indicated, to tell employees they had a right to recall.

[00:14:49] Speaker 07:
They were simply sent back to the hiring hall.

[00:14:52] Speaker 07:
That's what the company had always done, and that's what they did in this case.

[00:14:57] Speaker 07:
had they not sent them back to the hiring hall, had they, assuming that there was a right to recall and assuming that the company had put them in some type of suspense while they tried to figure out what they were going to do, the employees could well have lost opportunity because while they're not at the hall, they lose the opportunity to be referred out to other companies.

[00:15:20] Speaker 06:
But I thought the record here was, and maybe I misunderstood, just the factual setting.

[00:15:27] Speaker 06:
When you talk about the employee being referred back to the hiring hall, it's the Boilermakers hiring hall to which the employee was referred back.

[00:15:38] Speaker 06:
He had no right, after the February 17th letter, to expect any employment from your client, unless

[00:15:50] Speaker 06:
he was able to pass the test that the pipe fitters union required.

[00:15:55] Speaker 06:
If he passed that test, then he might be one of the employees.

[00:16:02] Speaker 07:
You are correct.

[00:16:04] Speaker 07:
So when the company sent the employees back to the hiring hall, the employees had options.

[00:16:11] Speaker 07:
One option was to remain a boiler maker and be referred out to other companies.

[00:16:16] Speaker 06:
But the association has already said they're not going to use the Boilermakers Union anymore.

[00:16:22] Speaker 07:
Correct.

[00:16:23] Speaker 07:
But other companies couldn't use the Boilermakers for their work.

[00:16:27] Speaker 06:
So they wouldn't, if they decided... So the employee just goes back on the open market, basically, with the union.

[00:16:34] Speaker 07:
Well, they go back to the hiring hall as they did whenever there was a lack of work, and they're referred out to any company that has a collective bargaining agreement with the Boilermakers.

[00:16:44] Speaker 07:
Now, at one time, that was law and dredging.

[00:16:45] Speaker 06:
I understand, but I'm just talking about your client and this relationship with the Association.

[00:16:51] Speaker 06:
I thought your responses to Judge Millett were that the Association covered three employers.

[00:16:58] Speaker 06:
It did.

[00:16:58] Speaker 06:
At least the letter, at least, was going to affect two of the three.

[00:17:03] Speaker 06:
And your answer now is the Boilermakers Union employees are just not going to be hired by the employers who are covered by this association.

[00:17:15] Speaker 07:
The Boilermaker, for a Boilermaker employee who previously worked for Hawaiian Dredging to return to Hawaiian Dredging, they would have to go to the Pipefitters.

[00:17:26] Speaker 06:
So the board said regarding, and I think it was Mr. Valentin's testimony,

[00:17:34] Speaker 06:
This practice that the board had of only using welders when there was an 8A craft agreement, as I understand your argument, you're referring to those as collective bargaining agreements.

[00:17:54] Speaker 07:
Yes.

[00:17:59] Speaker 06:
The board says, first of all, there are those two periods of time.

[00:18:03] Speaker 07:
Yes.

[00:18:04] Speaker 06:
And so that was an indication to the board that this practice wasn't as ironclad as I think Mr. Valentine testified.

[00:18:17] Speaker 07:
Correct.

[00:18:18] Speaker 07:
So the administrative law judge credited Valentine's testimony.

[00:18:23] Speaker 07:
And he testified that the practice of the company was only to work under a collective bargaining agreement.

[00:18:28] Speaker 07:
The board said, hey, wait a minute.

[00:18:29] Speaker 07:
There were two times when you did not work under a collective bargaining agreement.

[00:18:33] Speaker 07:
One was October 1st through the 7th when the parties were still negotiating, and the other was November 1st through the 12th when the extension agreement had lapsed.

[00:18:45] Speaker 07:
And the judge said in her decision that negotiations continued.

[00:18:51] Speaker 07:
The judge never determined that the contract was not agreed to prior to November 1st.

[00:18:59] Speaker 07:
And I think the evidence is pretty clear that the parties felt they had reached an agreement.

[00:19:04] Speaker 07:
And the facts that support that is that Valentine testified, and again, he was credited, he testified that he was advised by the Boilermakers that the employees had ratified the agreement.

[00:19:15] Speaker 06:
What agreement are we talking about?

[00:19:17] Speaker 06:
Are we talking about... To me, I'm thinking about this case in several ways.

[00:19:22] Speaker 06:
One is there was a collective bargaining agreement that expired.

[00:19:27] Speaker 06:
Yes.

[00:19:28] Speaker 06:
Then there'd be separate 8A agreements.

[00:19:32] Speaker 07:
It's actually 8F.

[00:19:34] Speaker 06:
I'm sorry, 8F.

[00:19:36] Speaker 06:
The February 17th letter terminated the 8F agreement insofar as the Boilermakers union was concerned.

[00:19:51] Speaker 07:
So there were two collective bargaining agreements.

[00:19:55] Speaker 07:
that could be relevant.

[00:19:58] Speaker 07:
Both were pursuant to 8F, and 8F just means that it's a construction employer and they're basically going to be using hiring halls.

[00:20:06] Speaker 06:
I understand what it is, but it's also not

[00:20:09] Speaker 06:
a collective bargaining agreement as I think of it as dealing with a union that represents a majority of the employees.

[00:20:17] Speaker 06:
It's an exception for the construction industry.

[00:20:20] Speaker 07:
You are correct.

[00:20:21] Speaker 06:
All right.

[00:20:22] Speaker 06:
So here we have these two separate 8F agreements.

[00:20:27] Speaker 06:
And Mr. Valentine testifies, so far as he knows, the company only has employees who are covered by these 8F

[00:20:38] Speaker 06:
agreements and the board says no there's these two times when you didn't so this is not a strictly enforced practice as the board suggests and your response is as I understood it there was an agreement but I thought the board had already found there wasn't a meeting of the minds between the Boilermakers and your client.

[00:21:10] Speaker 07:
Initial agreement expired on September 30th.

[00:21:15] Speaker 07:
That was extended until October 27th while the parties negotiated.

[00:21:21] Speaker 07:
In the party's view, they reached an agreement, and that was the agreement that was ratified by the employees.

[00:21:28] Speaker 07:
So that was the agreement.

[00:21:29] Speaker 06:
This is this temporary agreement?

[00:21:32] Speaker 07:
No, it was actually a three-year agreement.

[00:21:34] Speaker 07:
that would have taken effect upon the expiration, September 30th, of the old agreement.

[00:21:40] Speaker 06:
So your understanding of the record is that there was actually a new, what I'm going to call umbrella, collective bargaining agreement?

[00:21:48] Speaker 07:
Correct.

[00:21:50] Speaker 06:
And when the union respond, the Boilermakers union responded by saying we want these two extra terms?

[00:21:56] Speaker 07:
Correct.

[00:21:59] Speaker 06:
Essentially the board was wrong when it found there was no meeting of the mind and there was no umbrella agreement?

[00:22:05] Speaker 07:
Well, I think what's really relevant is that the testimony, accredited testimony, was that we only work under a collective bargaining agreement.

[00:22:12] Speaker 07:
The board said, wait, there's two times when you didn't work under a collective bargaining agreement.

[00:22:17] Speaker 07:
The board basically excused the period from November 12 until February 17, saying, hey, the party thought there was an agreement.

[00:22:26] Speaker 07:
But the same applies to November 1st through November 12th because the parties thought there was an agreement then too.

[00:22:33] Speaker 07:
So I think that period is pretty clearly not one that substantial evidence supports the board's finding.

[00:22:40] Speaker 04:
And the first period was you had both agreed to just sort of keep the status quo for essentially the month of October.

[00:22:47] Speaker 07:
Well, the company's view was that you would keep the status quo.

[00:22:52] Speaker 07:
The union disagreed with that, and there was a one-day work stoppage by five of the employees.

[00:22:59] Speaker 07:
But there's also testimony, and this is in the appendix of page 130,

[00:23:05] Speaker 07:
that the union told the company the employees were confused on October 30th, and in the company's view, that's why they walked off the job, and the company wasn't going to lay them off or discontinue operations because of this confusion.

[00:23:20] Speaker 07:
The long-term practice of the company, going back 20 years, is to continue to work towards an agreement until one is reached, even if the agreement lapses.

[00:23:31] Speaker 07:
And the agreement that they work under is just the continued terms of the recently expired agreement.

[00:23:38] Speaker 07:
That's what they've done in the past, and that's what they did on September 30th.

[00:23:47] Speaker 07:
Thank you.

[00:24:00] Speaker 01:
Good morning, Your Honor.

[00:24:02] Speaker 01:
And may it please the Court, my name is Dave Casperle.

[00:24:05] Speaker 01:
I'm representing the National Labor Relations Board.

[00:24:09] Speaker 01:
This case comes down to a fairly simple situation, which is that Hawaiian dredging had employed boilermakers for a long time.

[00:24:18] Speaker 01:
After an 8F agreement expired, it continued to employ those boilermakers.

[00:24:24] Speaker 01:
But on February 17th, after collective bargaining negotiations had broken down between the parties, Hawaiian Dredging sent a letter to the union saying, we will not employ Boilermakers again.

[00:24:40] Speaker 01:
We won't employ people referred to us by the Boilermakers hiring hall.

[00:24:44] Speaker 01:
We will not employ Boilermakers members in the future.

[00:24:47] Speaker 01:
We don't intend to use them.

[00:24:49] Speaker 01:
It fired all of its Boilermakers permanently.

[00:24:54] Speaker 01:
Yes, your honor.

[00:24:55] Speaker 09:
I understand this to be simple on your view, but it may not be as simple to us.

[00:25:01] Speaker 09:
This is not the normal.

[00:25:04] Speaker 09:
There are several things that do not mean what we usually see in L. B. T. One of them is the animals here.

[00:25:12] Speaker 09:
Usually we see an employer who seems to have animals toward labor unions.

[00:25:17] Speaker 09:
Here, it looks like the old days, when the animus would be directed toward one union, but not another.

[00:25:23] Speaker 09:
Am I reading that correctly, that what you're saying there, the animus is toward membership in this particular union, rather than toward unions in general?

[00:25:33] Speaker 01:
Yes, that's correct, Your Honor.

[00:25:34] Speaker 01:
And it's also correct that, going back to the beginning of the Act and early cases under the Act, this was not uncommon.

[00:25:41] Speaker 09:
It wasn't uncommon at all in those days.

[00:25:42] Speaker 01:
Right, and there are cases going back 70 years finding that animus against one particular union is just as prohibited as animus against unionization generally.

[00:25:52] Speaker 09:
What makes it a little more complicated, in fact, this is a hiring hall or a pre-employment agreement rather than the typical CBA, which is the Missouri Direction of State agreement in the United States.

[00:26:06] Speaker 09:
What happens now to the agreement that has been struck between

[00:26:13] Speaker 09:
if you we do if you pray and enforce your order, what does that do to the pipe fitters relationship with the employer?

[00:26:23] Speaker 01:
Well, your honor, I believe the pipe fitters agreement is in the record and there's a side letter to that agreement that deals with what happens to that agreement in the event of a court judgment.

[00:26:35] Speaker 09:
Um, I don't have that in front of my mind.

[00:26:37] Speaker 09:
Tell me what it is that happens to it in the event of a court

[00:26:41] Speaker 01:
Okay, I believe that that agreement is negated in the event of a court agreement.

[00:26:46] Speaker 01:
I believe that's what the side letter says.

[00:26:48] Speaker 09:
I don't have it right in front of me, right?

[00:27:00] Speaker 09:
These are not hostile questions.

[00:27:02] Speaker 01:
Yeah, I understand, Your Honor.

[00:27:03] Speaker 01:
And no, it wouldn't reinstate the Boilermakers agreement or the pipe fitters agreement.

[00:27:10] Speaker 01:
I mean, that's not the remedy here.

[00:27:12] Speaker 01:
The remedy is just to reinstate those Boilermakers who are fired because of their union affiliation.

[00:27:18] Speaker 09:
Since this is a hiring home situation, it may well be that there is no job this week for those employees to go to.

[00:27:27] Speaker 09:
Then there will be a job next week for the employee to go to.

[00:27:32] Speaker 09:
Then there might not be the next week.

[00:27:34] Speaker 09:
How is that going to work in a hiring hall?

[00:27:37] Speaker 01:
Well, Your Honor, that's actually not any different from the board's usual remedial practice, which is, in many cases, there's no jobs for employees after they've been discriminatorily discharged.

[00:27:49] Speaker 01:
And then the question is, you know, the board's order is to reinstate those employees to the same position, or if such position doesn't exist to a substantially equivalent position.

[00:27:58] Speaker 09:
And so, you know, that's an issue for- We definitely have a contract at that point.

[00:28:04] Speaker 09:
on which it needs welders, or whatever craftsman it is, then there is no such thing as a substantial equivalent.

[00:28:12] Speaker 09:
I'm just not sure that I understand how this works in a hiring hall situation.

[00:28:17] Speaker 01:
Well, Your Honor, again, in an ordinary situation, if a union's the 9A and there's no work for a particular person who is discharged, if that person had been permanently replaced, the board, that would be an issue for compliance that the board leaves for the second stage.

[00:28:33] Speaker 08:
I understand it would be an issue for compliance, but I'd like to understand how that's going to work.

[00:28:37] Speaker 08:
Well, if I didn't know it was an issue for compliance, I wouldn't ask the floor.

[00:28:41] Speaker 01:
Yes, Your Honor.

[00:28:42] Speaker 01:
I believe that, I mean, the Board would require discharging any welders who were not these discriminatees.

[00:28:50] Speaker 01:
It's also, as a practical matter, this is several years later, it's unclear that the welders would necessarily even want reinstatement at this point.

[00:29:00] Speaker 01:
The ones who have gone over out to other jobs, they may want to remain boiler makers or remain

[00:29:05] Speaker 01:
being referred through the Boilermakers hiring hall.

[00:29:09] Speaker 01:
So it is a fairly complicated situation at that point in it, but they would probably require them to discharge any.

[00:29:17] Speaker 01:
If your question is, would they require them to try to sign a contract to hire additional welders if there's too many welders for the work they have?

[00:29:24] Speaker 01:
No, that's not a typical compliance remedy that the board orders.

[00:29:28] Speaker 04:
Well, I think the reason we have these questions is that this is, I'm not sure the board's decision grappled with it, but this is a very different situation.

[00:29:37] Speaker 04:
The welders' relationship with Hawaiian dredging was completely derivative of the boilermakers' relationship with Hawaiian dredging, correct?

[00:29:46] Speaker 01:
No, Your Honor.

[00:29:47] Speaker 04:
That's how an ADEF works.

[00:29:48] Speaker 01:
No, Your Honor.

[00:29:49] Speaker 01:
The ADEF requires that they were referred by the union.

[00:29:53] Speaker 01:
That's all the ADEF means.

[00:29:55] Speaker 01:
Their relationship then is governed by a collective bargaining agreement, the same as virtually any other collective bargaining agreement.

[00:30:02] Speaker 04:
But in an ADEF situation, you come into it with, there's this pre-existing, pre-hire relationship between the union and the company.

[00:30:12] Speaker 04:
and the way you get to have a relationship with that company is because you're part of our union.

[00:30:18] Speaker 04:
Isn't that the whole point of the pre-hire and the 8F?

[00:30:20] Speaker 01:
Your Honor, no.

[00:30:23] Speaker 01:
There's two differences here.

[00:30:25] Speaker 01:
One is that there's a difference between union membership being part of a union and being referred to an employer through the hiring hall.

[00:30:33] Speaker 01:
Unions are required to operate their hiring halls neutrally without regard to union membership.

[00:30:39] Speaker 01:
They cannot require somebody to become a member of that union in order to be a part of their hiring hall.

[00:30:46] Speaker 01:
The only thing they can require is that after that

[00:30:48] Speaker 01:
employees referred to an employer, they can sign a collective bargaining agreement that requires that employee to then become a member of the union.

[00:30:56] Speaker 01:
And they can have seniority rules and other non-discriminatory rules for that, for operating a hiring hall.

[00:31:04] Speaker 04:
But the way many... Could these welders have done the work without being a member of the Boilermakers Union?

[00:31:12] Speaker 01:
The collective bargaining agreement would have required them to become a member of the Boilermakers.

[00:31:15] Speaker 04:
They couldn't have done the work without becoming a member of the Boilermakers Union.

[00:31:20] Speaker 01:
No, Your Honor.

[00:31:21] Speaker 04:
But that's no different.

[00:31:22] Speaker 04:
But I just said, they had to join the union to do the work.

[00:31:26] Speaker 01:
That's true, but that's also no different from any other.

[00:31:28] Speaker 04:
No, but then, so when Hawaiian Dredging says, we're done with this union, it's not working for us,

[00:31:36] Speaker 04:
We've tried, we've tried for months and months and months, this isn't working.

[00:31:40] Speaker 04:
We're gonna have a relationship with a new union.

[00:31:43] Speaker 04:
And so, the way the ZEDAV thing works is, if you're gonna work for us, then if you want the work, that's fine, but you're gonna have to do it through the pipe fitters agreement with us.

[00:31:55] Speaker 04:
And the pipe fitters say, you've gotta be part of us when you do the work, correct?

[00:32:02] Speaker 01:
Under 8F, Your Honor, it's not actually, so it's true that they had to be under the previous collective bargaining agreement.

[00:32:10] Speaker 01:
They had to be, it had a requirement that they would be members of the Boilermakers.

[00:32:15] Speaker 01:
That doesn't mean that they cannot be referred by another union if they're still members of the Boilermakers.

[00:32:22] Speaker 09:
But if they got there and got the job, they would then have to join the union that is in the union shop there.

[00:32:29] Speaker 01:
That's correct, Your Honor.

[00:32:30] Speaker 01:
They would have a seven-day grace period.

[00:32:32] Speaker 01:
And if what had happened here was there was no layoff... Why is that?

[00:32:36] Speaker 09:
If they're going to have a job for more than seven days, they have to have to join the 8F union.

[00:32:40] Speaker 01:
Correct.

[00:32:40] Speaker 01:
But they weren't given that option here, Your Honor.

[00:32:43] Speaker 04:
This is all about the seven-day grace period.

[00:32:46] Speaker 01:
Well, no, you're right.

[00:32:47] Speaker 04:
I just don't understand.

[00:32:49] Speaker 04:
You've got a company here that actually, to me, looks like it does all the stuff we want them to do, a long-term employer.

[00:32:55] Speaker 04:
It has these agreements with the union.

[00:32:57] Speaker 04:
And then things just broke down for whatever reason.

[00:33:01] Speaker 04:
Things broke down.

[00:33:02] Speaker 04:
And they said, it's not working.

[00:33:04] Speaker 04:
So now we're going to have agreement with another union.

[00:33:06] Speaker 04:
And this is an ADEF situation.

[00:33:08] Speaker 04:
And so it's a pre-hire agreement.

[00:33:10] Speaker 04:
And so now our welders are going to come from the pipe fitters.

[00:33:13] Speaker 04:
that's a perfectly permissible thing to do.

[00:33:16] Speaker 04:
And so why isn't it to go?

[00:33:18] Speaker 04:
I don't understand how they were supposed to keep these other folks on when the pipe bidder said, here's our test.

[00:33:24] Speaker 04:
They can't come in unless they pass our test.

[00:33:27] Speaker 04:
That's not hiring them because your favorite one union or the other, that's hiring, that's making decisions based on who I've got a collective bargaining, pre-hire collective bargaining agreement with.

[00:33:37] Speaker 04:
That's not unanimous, that's just shifting

[00:33:39] Speaker 04:
The 8F Union.

[00:33:41] Speaker 01:
If what they had done is simply say, okay, we're not going to do this, we're not going to have a collective bargaining relationship with the Boilermakers, terminate that relationship, start one with the pipe fitters, tell all of their employees, you must now become pipe fitters, that's lawful, but that's not what they did.

[00:33:57] Speaker 01:
They fired all the pipe fitters, sorry, all the Boilermakers.

[00:34:01] Speaker 09:
i'm sorry i think the conclusion career you're going to be they fired him and we know that part of the book will be laying them all you're going to go to the park

[00:34:14] Speaker 01:
Well, that would, but there's other indications that they fired them, such as the separation notices didn't check layoff where they had before every other time.

[00:34:22] Speaker 04:
Now, but the problem here is you've got an ALJ decision that credited testimony.

[00:34:27] Speaker 04:
It was adverse to the determination the board made, and I don't see the board wrestling with that anywhere in its decision.

[00:34:33] Speaker 04:
It just blows right past it.

[00:34:35] Speaker 04:
and then poses a new test that the ALJ didn't imply and he didn't establish a record for, the board just blew right past all of it.

[00:34:43] Speaker 04:
Isn't that just by itself error?

[00:34:45] Speaker 01:
Well, Your Honor, in terms of not establishing a record for the right line test, that part is not the case.

[00:34:54] Speaker 01:
In front of the ALJ, the parties litigated the right line issue.

[00:34:57] Speaker 01:
And indeed, in its responding brief to the general counsel's exceptions, which is in the record, Hawaiian dredging did mention the right line argument in its agreement with the judge that right line wasn't applicable and that even if right line were applicable,

[00:35:13] Speaker 01:
They had a footnote saying that they don't, you know, don't think.

[00:35:17] Speaker 04:
The general counsel didn't pursue a right line theory before the ALJ.

[00:35:21] Speaker 01:
The general counsel didn't explicitly do so, but it was, you know, the complaint just alleges a general violation of 8A3.

[00:35:28] Speaker 01:
It was the ALJ's option not to use right line there.

[00:35:32] Speaker 01:
And, you know, to the extent that there were arguments based on right line that weren't raised to the board.

[00:35:38] Speaker 09:
Tell me what it is they used instead of right line then.

[00:35:41] Speaker 09:
What is 3?

[00:35:45] Speaker 01:
The reason under right line, your honor, or?

[00:35:48] Speaker 09:
Are you saying they followed the right line or not?

[00:35:51] Speaker 01:
Yes, this is a right line and also a Great Dane case, as the board found.

[00:35:56] Speaker 01:
And under right line, which is a test of basically motivation, the motivation for this action was the fact that they were Boilermakers.

[00:36:07] Speaker 04:
And going back to- That motive determination, the opposite motive determination was made by the ALJ, correct?

[00:36:14] Speaker 04:
Well not, didn't call it right line because nobody was doing right line before the ALJ.

[00:36:18] Speaker 04:
But the part of Great Dane found it wasn't inherently destructive, found the motivation was entirely that we're letting you go because we're not going to work with that union anymore.

[00:36:28] Speaker 04:
You're here via that union.

[00:36:29] Speaker 04:
We don't work unless we have an agreement with the union, and then we'll go get a new one.

[00:36:33] Speaker 04:
And then they went out of their way to try to help those welders come in through that other union's route.

[00:36:39] Speaker 04:
And the ALJ made all these findings.

[00:36:41] Speaker 04:
And I don't see in the board decision it grappling with that adverse evidence in the record or the adverse findings by the ALJ, which is kind of basic APA duty for the board.

[00:36:53] Speaker 01:
Well, Your Honor, in terms of the adverse findings in terms of Hawaiian dredging, trying to help the workers find employment with it through the pipe fitters, the very simple way to do that would have been just to keep them employed.

[00:37:08] Speaker 01:
Then they wouldn't have to pass a welding test.

[00:37:09] Speaker 04:
The fact that you could have done something a different way does not mean you had motive.

[00:37:14] Speaker 04:
It's not an answer to the ALJ's determinations about what motivated this company when it said there's no liability at all.

[00:37:21] Speaker 01:
Well, what is an answer to the ALJs and what the board did grapple with is that the ALJ did not actually look carefully at the period during which there were no contracts in place and during which they worked.

[00:37:34] Speaker 01:
Instead, the ALJ just said they always worked with the collective bargaining agreement and so when the agreement ended they... But those two periods, come on, those two periods are exactly what you want employers to do.

[00:37:44] Speaker 04:
Don't you want them, when the collective bargaining agreement has ceased,

[00:37:49] Speaker 04:
to keep going on to the extent they can and the union works it too with the status quo instead of stopping everything that's what they did and then there was a dispute about whether there was another agreement and they kept working in good faith while they're negotiating with the company of the union they had a long-standing relationship with that's a hundred percent different from when they got to the point and said this isn't working we're done we cannot work with that union anymore

[00:38:15] Speaker 04:
We're going to have to get another union.

[00:38:17] Speaker 04:
That's a completely different situation.

[00:38:19] Speaker 04:
Wouldn't you agree?

[00:38:20] Speaker 04:
Or at least that the board had to address that difference in the situation and didn't do so?

[00:38:25] Speaker 01:
Well, Your Honor, in the 8F context, there's no duty to maintain terms and conditions of employment after an agreement expires.

[00:38:33] Speaker 01:
The duty there is... That's right.

[00:38:34] Speaker 04:
It's a good practice by a company.

[00:38:36] Speaker 04:
Maybe, but... No good deed goes unpunished, does it?

[00:38:40] Speaker 01:
Well, here, the pump company, sure, it had that practice, but it was with the union's agreement that it had that practice in the past.

[00:38:47] Speaker 01:
There's no evidence that there were other lapse periods... There's a lapse of an agreement equal animal.

[00:38:54] Speaker 09:
Not in and of itself.

[00:38:56] Speaker 09:
Your offer terminated them are in some fashion cease to have an informal relationship with them because their contract ended and they couldn't get back together.

[00:39:06] Speaker 09:
Does that make animal?

[00:39:08] Speaker 01:
No, Your Honor.

[00:39:09] Speaker 01:
But then what happened in addition to that in this case is they actually told the Boilermakers, we don't intend to use members of the Boilermakers, not just people referred by the Boilermakers hiring hall.

[00:39:22] Speaker 01:
So then when they get, what they could have done is just kept these Boilermakers on.

[00:39:27] Speaker 04:
We're an 8F company.

[00:39:29] Speaker 04:
We've had a relationship with the Boilermakers and now we're not going to, so we're not going to have that same relationship with the Boilermakers.

[00:39:37] Speaker 04:
That's all they were saying.

[00:39:38] Speaker 04:
At least that's something the board had to grapple with in its decision and didn't particularly given what the ALJ found about this employer.

[00:39:47] Speaker 04:
Do you agree they at least should have addressed it and talked about it in their decision?

[00:39:51] Speaker 01:
But what the board did talk about is what they did more than that.

[00:39:54] Speaker 01:
And the board did say, it addressed John Declawan in response to the dissent, and it said, we do not quarrel with the fact that it's lawful for an employer to terminate a bargaining relationship and start one with a new union.

[00:40:07] Speaker 01:
That part, the board did.

[00:40:09] Speaker 01:
state that, but what happened here was they did that and then they also fired all of these employees who they could have kept employed and they told them, you know, or they told them it's because they were boiler makers.

[00:40:21] Speaker 04:
They couldn't have kept them employed, they couldn't have kept giving them work once they had an agreement with the pipe fitters union, correct?

[00:40:25] Speaker 01:
Yes, they could, Your Honor.

[00:40:27] Speaker 01:
Under ADEF, they have to keep... Under ADEF, they can keep giving their current employees work.

[00:40:32] Speaker 04:
It's only if they were gonna get a new... So they would have to change their whole mode of operating, which was, we work with whatever union we have our ADEF agreement with.

[00:40:40] Speaker 04:
And their failure to change their entire 20-year history of operations means animus?

[00:40:45] Speaker 01:
No, Your Honor.

[00:40:47] Speaker 01:
they could have kept the employees who had been employed there for five years or longer doing the work they had been doing, which is also... Under an ADEF agreement with the Boilermakers Union.

[00:40:56] Speaker 01:
Yes, but they could, those same workers could do the work under an ADEF agreement with the pipe fitters.

[00:41:01] Speaker 04:
And they tried to help them do that, right?

[00:41:03] Speaker 04:
They tried to help them fit the pipe fitter's tasks.

[00:41:05] Speaker 01:
Yeah, right, but they wouldn't have had to do any of that, you know, if they had remained employed the entire time.

[00:41:14] Speaker 01:
The employees would have had seven days to switch their union membership and the pipe fitters can't tell a current employee you cannot become a pipe fitter because you haven't passed our welding test.

[00:41:24] Speaker 01:
That would be a violation of AB2 if they caused an employee to be discharged for any reason other than failure to pay dues.

[00:41:33] Speaker 01:
So all that would have happened in that case, in the typical 8F case where an employer switches from one union to another, the employer keeps its employees the entire time, and the employees then have seven days to simply pay their membership dues and any non-discriminatory initiation fees and become members of that new union.

[00:41:52] Speaker 01:
That's the typical case.

[00:41:53] Speaker 01:
Here, that didn't happen.

[00:41:55] Speaker 01:
Instead, they fired all of them.

[00:41:56] Speaker 04:
Well, they didn't have any work for that seven days for the welders.

[00:41:59] Speaker 01:
Yes, they did have work, Your Honor.

[00:42:01] Speaker 04:
That seven days, they stopped welding work.

[00:42:02] Speaker 01:
They chose to stop welding work, but they had work to do.

[00:42:06] Speaker 01:
It wasn't, it's stipulated in the record.

[00:42:08] Speaker 09:
I said Darlington could come in.

[00:42:12] Speaker 09:
They had a right to shut down an operation.

[00:42:15] Speaker 01:
They didn't shut down operations here.

[00:42:17] Speaker 01:
It was a temporary stop for three weeks and Darlington has never been.

[00:42:24] Speaker 01:
I'm sorry.

[00:42:28] Speaker 01:
Darlington never has been applied to a temporary shutdown of this shorter duration.

[00:42:33] Speaker 01:
Moreover, that was into theory that was brought to the board.

[00:42:36] Speaker 01:
They didn't say cite Darlington in their brief to the board, which is also in the record.

[00:42:41] Speaker 01:
This is a theory that the dissent

[00:42:43] Speaker 04:
I think there's, what I asked your friend originally, there's two ways of talking about Darlington.

[00:42:50] Speaker 04:
One is as sort of this upfront defense to the entire action, and the other one is, no, it's illustrative of why, the Darlington concept is illustrative of why

[00:43:01] Speaker 04:
not doing welding work for a week is not evidence of animus.

[00:43:04] Speaker 04:
And I had understood them to be using it that way from their briefing.

[00:43:08] Speaker 04:
And given that the board itself pulled right line out of an error in its own proceedings, I think it's ill-positioned to complain about other people citing cases for the first time after the ALJ proceeding.

[00:43:19] Speaker 01:
Well, Your Honor, Section 8F of the Act doesn't bar the board from citing cases that hadn't been cited before, but it does bar a court from overturning the board based on a case or based on a theory that hadn't been.

[00:43:34] Speaker 04:
No, an illegal theory or claim, not getting the law right and citing the right cases.

[00:43:40] Speaker 01:
That may be true, Your Honor, but to your point about Darlington and in terms of how it's been used, I'm not aware of any case where Darlington has been used in the mayor you're speaking of.

[00:43:49] Speaker 01:
Generally, Darlington is used as a total defense as a this was a shutdown.

[00:43:54] Speaker 01:
Our motivation doesn't matter.

[00:43:55] Speaker 01:
We could have had

[00:43:56] Speaker 01:
And in Darlington itself, the employer clearly had ill motives.

[00:44:00] Speaker 01:
It decided, you know, I just really don't like this union, and I want to be rid of them.

[00:44:05] Speaker 01:
And so it would be a typical 883 violation, except that Darlington has this exception for employers who want to shut down their business permanently and allows them to do that.

[00:44:17] Speaker 01:
That doesn't really apply to this situation where we're talking about motivation, which was not an issue in Darlington.

[00:44:22] Speaker 01:
It was clear that there was ill motivation.

[00:44:26] Speaker 01:
Seeing as I'm over time, unless the court has any further questions, I request that you enforce the board's order in full.

[00:44:49] Speaker 03:
David Rosenfeld for the intervener.

[00:44:51] Speaker 03:
Judson tell Mr. Cassidy is not correct.

[00:44:54] Speaker 03:
The only remedy sought in this case is back pay for the workers.

[00:44:59] Speaker 03:
Those of us who practiced before the board note there's a paragraph in the ALJ's decision in which he says the compliance specification issued because the board was able to determine exactly how much back pay was owed and was not seeking reinstatement because in the interim Hawaiian dredging had offered everybody come back to work.

[00:45:17] Speaker 03:
So there's no effect.

[00:45:18] Speaker 09:
The reinstatement is not really on the table.

[00:45:20] Speaker 09:
It never was an issue.

[00:45:22] Speaker 09:
I just kind of figured out what was going to happen.

[00:45:25] Speaker 04:
Is it one week of back pay?

[00:45:27] Speaker 09:
Pardon?

[00:45:27] Speaker 04:
Is it one week of back pay for that one seven day period?

[00:45:30] Speaker 03:
No, and that's, Judge Miller, that's exactly the problem here.

[00:45:32] Speaker 04:
So your answer is no.

[00:45:33] Speaker 04:
It's back pay for how long?

[00:45:34] Speaker 04:
How long do you think this back pay period is?

[00:45:36] Speaker 03:
Well, it varies from worker to workers.

[00:45:38] Speaker 03:
And, Your Honor.

[00:45:40] Speaker 09:
How is it determined?

[00:45:42] Speaker 03:
It was determined.

[00:45:44] Speaker 03:
It was the length of time before they found either alternative work as a boilermaker, but some of them went to work for wine dredging as pipe fitters.

[00:45:54] Speaker 03:
None of them went to work within seven days.

[00:45:59] Speaker 03:
It took more than a month before the first one went to work for wine dredging.

[00:46:04] Speaker 03:
So in March, late March, two of them, including Mr. Kaufman, who's the supervisor, and I want to be clear, Mr. Maurer's correct that it's not unusual in the construction industry to have a supervisor in the unit covered by the agreement.

[00:46:17] Speaker 03:
He gets the benefits, the health and welfare pension benefits, and that works because they move back and forth.

[00:46:22] Speaker 09:
I don't have any problem with it.

[00:46:24] Speaker 09:
I just wasn't quite sure how it was working.

[00:46:26] Speaker 09:
That's the way it works.

[00:46:27] Speaker 09:
As you know, this is not the kind of CVAs we usually see here.

[00:46:31] Speaker 03:
Well, it's interesting, because even under 9A agreements, there can be referral procedures and hiring procedures, but this is unusual, and that's all I've done in my life, for the most part, in 8F agreements.

[00:46:41] Speaker 03:
So, gentlemen, you've kind of narrowed the question here, because the fact is, I'm not going to use the word fired.

[00:46:46] Speaker 03:
I'm going to use the word the board used, and that Ms.

[00:46:49] Speaker 03:
Gamara, the dissenter used, they were discharged.

[00:46:52] Speaker 03:
And inconsistent with past practice, they weren't discharged because it was a lack of work.

[00:46:57] Speaker 03:
If you look at all the forms in the record, every time they were, quote, laid off in the past, it was for lack of work, they knew they'd be called back.

[00:47:04] Speaker 03:
Here, when they were, quote, discharged, they knew there was work right there because they all saw it.

[00:47:09] Speaker 03:
They hadn't completed the tanks they were working on.

[00:47:12] Speaker 03:
And they were suddenly told, you're terminated.

[00:47:14] Speaker 03:
Mr. Kaufman, in the record, was told by management, we're terminating the Boilermaker members.

[00:47:20] Speaker 03:
You need to tell them.

[00:47:22] Speaker 03:
So they were all discharged.

[00:47:24] Speaker 04:
Because we're no longer going to have an agreement with the Boilermakers Union, and we have one with the pipe fitters.

[00:47:31] Speaker 04:
Not at that time.

[00:47:33] Speaker 03:
One week later, right.

[00:47:36] Speaker 04:
Until we get a new agreement, we're not going to do welding work, because we only do our welding work when there's an 8F agreement in place.

[00:47:43] Speaker 03:
Well, that would be a much different case, and I think a much stronger case.

[00:47:47] Speaker 04:
Isn't that this case?

[00:47:48] Speaker 04:
We only do welding work when we have an 8F agreement in place.

[00:47:51] Speaker 04:
That's what the ALJ credited.

[00:47:53] Speaker 04:
And a week later, they had a pipe fitters union agreement.

[00:47:59] Speaker 03:
That's not what the workers were told what happened was.

[00:48:01] Speaker 04:
What did the ALJ credit?

[00:48:03] Speaker 03:
Well, the ALJ credited that they had a reason, which is they only do work under the terms of the grant.

[00:48:08] Speaker 03:
The credited that was the motive.

[00:48:10] Speaker 04:
Right, that was a credited motive.

[00:48:11] Speaker 04:
Right.

[00:48:12] Speaker 04:
Can you point to me where the board decision addressed that credited finding by the ALJ in determining anonymous?

[00:48:20] Speaker 03:
And the board said that

[00:48:22] Speaker 03:
that's not strictly enforced here for several reasons.

[00:48:25] Speaker 03:
There were periods of time.

[00:48:26] Speaker 04:
Where do they say, but the ALJ credited this long history by the business.

[00:48:31] Speaker 04:
This is how they do their operations.

[00:48:33] Speaker 04:
I get that the board said, well, you continued while you were negotiating, which I think is a completely different animal from not working without any agreement or any prospect of an agreement.

[00:48:43] Speaker 04:
I get the board went back and talked about two things, which I think compares apples and oranges.

[00:48:47] Speaker 04:
But where do they say, we get the ALJ found proper motive here,

[00:48:53] Speaker 03:
because they said that's not strictly applied because they pointed to two circumstances where the company in light of

[00:49:02] Speaker 03:
concerned actually by the workers.

[00:49:05] Speaker 03:
In October, when this situation arose where there's no contract, the union hands to a Hawaiian dredging letter that I wrote saying we can strike any time.

[00:49:14] Speaker 03:
And the company was upset about that.

[00:49:15] Speaker 03:
And then in November, when this problem arose.

[00:49:19] Speaker 04:
But the company said an agreement is expired, but we are involved.

[00:49:23] Speaker 04:
We're still talking to you.

[00:49:24] Speaker 04:
We're going to work with you.

[00:49:25] Speaker 04:
We're trying to have negotiations.

[00:49:27] Speaker 04:
And we'll just continue the status quo of the prior agreement.

[00:49:31] Speaker 04:
The hopes and we're planning to get one we're talking about getting one through October and it's gonna be retroactive When we get it so in their mind, there's gonna be an agreement for this October work construction It makes a lot of sense to do that.

[00:49:43] Speaker 04:
Okay, but that's what was going on here So what's apples and oranges to me when the board goes back and says that's the same thing as refusing to work with them When there's no agreement and no prospect of an agreement

[00:49:54] Speaker 03:
The difference was that if you applied that concept on February 17, what they would have told the workers was not, you're discharged and we're not using members of your union anymore, because these workers had to go home and say, I just got discharged.

[00:50:09] Speaker 03:
We're not going to be using Boilermaker members anymore.

[00:50:12] Speaker 03:
I'm out of this long-term good job I've had with wine and dredging.

[00:50:15] Speaker 03:
Had they said to them, you are being laid off because we're having to make other arrangements,

[00:50:23] Speaker 03:
and not sounded like it was a permanent discharge, this case would have been substantially different.

[00:50:28] Speaker 03:
And only until the workers were terminated, discharged that day, they had no clue that there'd ever be employment for them again.

[00:50:36] Speaker 03:
And then within a week, the company signs an agreement with the pipe fitters.

[00:50:39] Speaker 04:
And there's an important fact that the board doesn't... But just to be clear, they didn't know that they'd be working with Hawaiian dredging again.

[00:50:46] Speaker 03:
I can still go through that.

[00:50:47] Speaker 03:
But there were three employers, all of whom terminated the grant, and there's no evidence in the record of any of the work going on.

[00:50:52] Speaker 04:
They just told us only two did.

[00:50:54] Speaker 09:
And you said you didn't know of that.

[00:50:56] Speaker 09:
Yeah, there were three members.

[00:50:57] Speaker 06:
What about the testimony that council cited of one employee in his opening argument?

[00:51:04] Speaker 03:
Of one employee.

[00:51:05] Speaker 03:
Coughlin.

[00:51:06] Speaker 03:
Coughlin, sorry.

[00:51:08] Speaker 03:
Coughlin was the supervisor.

[00:51:09] Speaker 06:
Yeah.

[00:51:10] Speaker 03:
and he was terminated because of his membership also, but he was the first one rehired a month later.

[00:51:18] Speaker 06:
No, but I thought the significance counsel was suggesting of the testimony was that he said, no, they weren't told they'd be called back, but nothing was going to change from what had happened before.

[00:51:30] Speaker 03:
Now, I don't think he made that representation.

[00:51:33] Speaker 03:
And in fact, Kaufman testifies that he was expressly told they were terminating the members, and was also told it was because there was no contract, and it was done.

[00:51:41] Speaker 04:
And I, so if you look at- He was a supervisor who was terminated.

[00:51:44] Speaker 03:
Yes.

[00:51:46] Speaker 03:
And again, and what the pickle the company found itself in was when it met with the pipe fitters a couple days later.

[00:51:54] Speaker 03:
The head of the pipe fitters, this guy, Castanaras, said very clear to them, we will not allow these boiler makers to come back to work for us because they're not members.

[00:52:04] Speaker 03:
And that's in the records several places where he testifies.

[00:52:08] Speaker 03:
And there's actually an affidavit from him that was supplied in support of the motion for summary judgment in which the pipe fitter's head says, we're not letting them come back to work.

[00:52:16] Speaker 03:
We reject your request.

[00:52:18] Speaker 04:
So that was a pickle because they were hoping that the pipe fitters would then just bring their folks right back, right?

[00:52:24] Speaker 03:
That's right.

[00:52:25] Speaker 04:
That doesn't sound like animus to me.

[00:52:26] Speaker 03:
Well, it was animus because, as the board points out, they were terminated because they were members because, as your honors phrased it, they had not been able to reach an agreement with the Boilermakers Union because they had gotten this dispute over

[00:52:40] Speaker 03:
five cents, basically, over whether they had an agreement.

[00:52:43] Speaker 03:
The Boilermakers said, no, we don't have an agreement, as you phrase it.

[00:52:47] Speaker 03:
The company said, we have an agreement.

[00:52:49] Speaker 03:
The region dismissed the charge.

[00:52:50] Speaker 03:
And so they said, we've had, as Your Honor pointed out, enough of the Boilermakers.

[00:52:54] Speaker 03:
We can't reach an agreement.

[00:52:55] Speaker 04:
So we're going to terminate their members, discharge them, and- We're going to terminate our ADEF relationship with the Boilermaker Union.

[00:53:04] Speaker 04:
We do welding work under an ADEF relationship.

[00:53:07] Speaker 04:
We now have a new pipe fitters union.

[00:53:10] Speaker 04:
We went to them expecting and hoping that they would take our welders back in, that we would just be able to shift them over to the other union.

[00:53:18] Speaker 04:
But they ran into a pickle because of this other union's policies, as you phrase it.

[00:53:24] Speaker 04:
I just don't think that sounds like animus.

[00:53:27] Speaker 04:
Maybe they mishandled it.

[00:53:29] Speaker 04:
But given the findings by the ALJ that the board doesn't deal with, and given your own concession that they were trying to do this but ran into a pickle because of the other union, not because of their own intentions, that doesn't feel like animus to me.

[00:53:41] Speaker 03:
The pickle, in pickling if I can use that term, was of their own cause because had they said to the workers,

[00:53:48] Speaker 03:
the Boilermaker members, we're going a different direction.

[00:53:51] Speaker 04:
But misstepping is not animus.

[00:53:53] Speaker 04:
Maybe they didn't handle it gracefully, and we can think in hindsight of other ways they could have handled it.

[00:53:59] Speaker 04:
But that's not the same thing as up front at the time animus.

[00:54:03] Speaker 06:
Could I understand your answer?

[00:54:05] Speaker 03:
Pardon?

[00:54:06] Speaker 06:
You were answering Judge Millett's question.

[00:54:08] Speaker 03:
Yeah, because they expressly said it was because of membership.

[00:54:11] Speaker 03:
The letter that they sent that was circulated, which is Appendix 295 says,

[00:54:17] Speaker 03:
Since our prior agreement with the Union terminated on September 30, you are hereby advised that the Association does not intend to utilize members of the Boilermakers Union for future work.

[00:54:29] Speaker 03:
It was membership.

[00:54:31] Speaker 03:
That's what the workers understood.

[00:54:32] Speaker 03:
That's what the Union understood.

[00:54:35] Speaker 03:
And if the word referred

[00:54:38] Speaker 09:
referrals had been used instead of members.

[00:54:41] Speaker 09:
Would this be a different case?

[00:54:43] Speaker 03:
Yes, if they had said we do not intend in the future to use the Boilermaker hiring hall.

[00:54:50] Speaker 03:
then that would have been a different case.

[00:54:52] Speaker 03:
But they didn't.

[00:54:53] Speaker 03:
They said, membership.

[00:54:54] Speaker 03:
And in the transcript, there were repeated reference to members of the union.

[00:54:59] Speaker 03:
And that's what the members understood.

[00:55:00] Speaker 03:
No worker is going to understand anything else in this context other than what the company said.

[00:55:06] Speaker 03:
It's because of your membership, you're being discharged.

[00:55:10] Speaker 03:
And then they couldn't go back to work.

[00:55:12] Speaker 03:
Because they weren't both because of their membership, it's kind of an interesting footnote, if I may note.

[00:55:18] Speaker 03:
This Phil Nisgramara, the dissenter, says that they would have had to have given up their membership in the boil makers and become a pipe fitter.

[00:55:25] Speaker 03:
And I'm not sure he's correct on that.

[00:55:27] Speaker 03:
You can actually be dual members in many cases.

[00:55:29] Speaker 03:
And if you look at these records, some of these guys have been.

[00:55:32] Speaker 09:
There's no reason they couldn't be dual members.

[00:55:34] Speaker 09:
Is that correct?

[00:55:34] Speaker 03:
I don't think so, but there's nothing in the record that conclusively establishes that my experience is that even the Boilermakers, some are members of Pipefitters and back and forth.

[00:55:43] Speaker 03:
But the problem here was that Castaneda said, you have to become a member before you can go to work as part of the application process.

[00:55:51] Speaker 03:
And so two of the members went to work, former members, in March.

[00:55:56] Speaker 03:
And it straggled out over the next couple of years.

[00:55:58] Speaker 03:
And the last one finally went to work in 2012.

[00:56:01] Speaker 03:
So the back pay for some of them is very short, very long.

[00:56:05] Speaker 03:
But to try to conclude this, on February 17, they're discharged.

[00:56:11] Speaker 03:
They know it's not a layoff, as ever in the past, because there's plenty of work.

[00:56:16] Speaker 03:
They go away.

[00:56:17] Speaker 03:
They're not told anything.

[00:56:19] Speaker 03:
A deal is cut with the pipe fitters, and I'm not complaining.

[00:56:21] Speaker 03:
It's an 8F agreement, perfectly lawful to do that.

[00:56:25] Speaker 03:
And then they're all foreclosed from coming to work until they go through the application process.

[00:56:30] Speaker 03:
And the important point that Mr. Cassidy was making is that under a pre-hire construction agreement, you have to join in the eighth day.

[00:56:38] Speaker 03:
You have to pay your dues on the eighth day.

[00:56:39] Speaker 03:
You don't have to literally join.

[00:56:41] Speaker 03:
You have to pay your dues.

[00:56:42] Speaker 09:
To be referred by.

[00:56:43] Speaker 03:
Right, to be referred by.

[00:56:44] Speaker 03:
The Piper said, we're not even going to refer them unless you join in advance, which was unlawful.

[00:56:50] Speaker 03:
So they threw this unlawful roadblock into- That's not accurate.

[00:56:56] Speaker 03:
It is before you because the administrative law judge, I'm sorry, the dissent points this out, and as Mr. Kastner points out, that was the seven-day problem.

[00:57:09] Speaker 03:
So let me just, again, I know I'm way over time here, but.

[00:57:12] Speaker 03:
8F is an interesting animal, but it works in the construction.

[00:57:15] Speaker 03:
Judging from what I'm not complaining in the least about the fact that Hawaiian dredging, because it couldn't work out with the boilermakers, and I represent the boilermakers, went to another trade and said, we want an agreement with you.

[00:57:27] Speaker 03:
That's fine.

[00:57:28] Speaker 03:
I mean, that's the way this works.

[00:57:30] Speaker 03:
It's not, I don't like this, but you know, that's the way it works.

[00:57:34] Speaker 03:
The fault here

[00:57:36] Speaker 03:
was in Hawaiian dredging saying to these long-term workers, you're discharged because you were members of the union and your union caused us a problem by not reaching an agreement rather than

[00:57:50] Speaker 03:
either doing one of two things, if not to show animus.

[00:57:54] Speaker 03:
One is to keep them working, which it had every right to do until it signed the agreement with the pipe fitters, or say to them, you're all being laid off.

[00:58:01] Speaker 03:
We have lots of work, but we need to make new arrangements with the new union.

[00:58:05] Speaker 03:
And when we do that, you're welcome to come back to work.

[00:58:08] Speaker 03:
But they didn't do that.

[00:58:09] Speaker 03:
So the workers went home that day thinking they'd lost these good lifetime jobs because of their membership in the union.

[00:58:15] Speaker 03:
Thank you.

[00:58:16] Speaker 06:
Thank you.

[00:58:22] Speaker 06:
Yes, of course.

[00:58:25] Speaker 07:
Thank you.

[00:58:25] Speaker 07:
I disagree with what the workers were told.

[00:58:28] Speaker 07:
Council is quoting from a letter that was sent to the union, and certainly it could have been a better phrase, but what the workers were told is contract has expired.

[00:58:38] Speaker 07:
This case really turns on motive.

[00:58:39] Speaker 06:
Well, you're not trying to back off your February 17th letter.

[00:58:44] Speaker 06:
No.

[00:58:45] Speaker 07:
The letter was sent to the union.

[00:58:47] Speaker 07:
It wasn't sent to the employees.

[00:58:49] Speaker 06:
I understand.

[00:58:51] Speaker 09:
Now, when you refer to the employees being told something different, what's the record on that?

[00:58:59] Speaker 09:
What do you have in the record to support that statement?

[00:59:02] Speaker 07:
The record shows that the employees were told that the reason for their separation was, quote, contract has expired.

[00:59:08] Speaker 09:
Now, where are they told that?

[00:59:10] Speaker 09:
Where in the record do we see that?

[00:59:12] Speaker 07:
They're told in their separation notices.

[00:59:14] Speaker 09:
Where do we see that in the record?

[00:59:22] Speaker 07:
I believe it begins at page 311.

[00:59:26] Speaker 07:
Yes, 311 through 3... I'm sorry.

[00:59:30] Speaker 07:
297 through 310.

[00:59:41] Speaker 04:
You had hearing testimony to that effect too, did you not?

[00:59:44] Speaker 07:
That is correct.

[00:59:46] Speaker 04:
The ALJ hearing transcript?

[00:59:48] Speaker 07:
That is correct.

[00:59:49] Speaker 04:
It is 56 to 59?

[00:59:54] Speaker 07:
But what this case really turns on is motive.

[01:00:02] Speaker 07:
And the best indication of motive is what the administrative law judge found in the accredited testimony.

[01:00:09] Speaker 07:
And she found that the reason the welders were laid off or discharged was because there was not a contract in place.

[01:00:18] Speaker 07:
She did not find that they were told that they were terminated because of union membership.

[01:00:25] Speaker 07:
She actually further credited testimony that it didn't matter to the company whether they were boiler makers or not.

[01:00:33] Speaker 07:
So based on the clear, the direct evidence,

[01:00:38] Speaker 07:
It's clear what the motive was.

[01:00:40] Speaker 07:
It's unnecessary to go to Rightline.

[01:00:42] Speaker 07:
It's unnecessary to go to Great Dane, because those are analytic frameworks to determine, to infer what motive was, because usually there's not direct testimony.

[01:00:53] Speaker 07:
But here, the judge found through direct testimony what the company's motive was.

[01:00:58] Speaker 06:
Thank you.