[00:00:01] Speaker 00: Case number 16-1316 at L. King-Sopers at L Petitioner versus National Labor Relations Board. [00:00:08] Speaker 00: Mr. Deaney for the petitioner, Ms. [00:00:10] Speaker 00: Ginn for the respondent. [00:00:15] Speaker 03: Thank you. [00:00:16] Speaker 03: Good morning and may it please the court. [00:00:18] Speaker 03: I'm Ray Deaney and with me at council table is my associate, Jonathan Watson. [00:00:30] Speaker 03: Your Honors, the matter in this case involves King Super's petition to vacate the NLRB's findings, conclusions, and remedies in its failure to defer to the party's grievance and arbitration process in accordance with proper formulations of what's referred to as the Collier Insulated [00:00:59] Speaker 03: wire deferral doctrine. [00:01:03] Speaker 03: King Supers as well seeks review of the NLRB's orders in this case that it violated sections 8A1 and 3 of the National Labor Relations Act and therefore charging party in this case, Ms. [00:01:20] Speaker 03: Gieselin was entitled to an enhanced remedy to redress these violations. [00:01:27] Speaker 03: The NLRB has cross petitioned for enforcement of all of these orders. [00:01:37] Speaker 03: This issue about Collier deferral has had a boundless and sometimes unrestrained history through the NLRB and certainly in this circuit court. [00:01:52] Speaker 03: It started out being characterized by the honorable Judge Edwards as confusion at the NLRB about the [00:02:05] Speaker 03: scope of collier deferral. [00:02:07] Speaker 01: Doesn't it typically require a settlement? [00:02:10] Speaker 01: I'm sorry, Judge Griffin. [00:02:11] Speaker 01: Doesn't it typically require a settlement before we start using it? [00:02:14] Speaker 03: No, I don't think so, Your Honor. [00:02:15] Speaker 03: I think it requires a resolution. [00:02:18] Speaker 01: But I couldn't find any case in which the charging, in which you have the union backing out and the charging party wanting to go ahead. [00:02:30] Speaker 01: and the employee wanted to go ahead. [00:02:33] Speaker 01: Are there any cases like that? [00:02:34] Speaker 03: I think there are several. [00:02:35] Speaker 03: In fact, one of them that Judge Edwards also dealt with in the plumbers and pipe fitters local 520 case where the union told the grievant in that case that they were not going to proceed to arbitration. [00:02:55] Speaker 03: The local union and the grievant proceeded to the NLRB [00:03:00] Speaker 03: The administrative law judge proceeded to hear the 8A1 and 8A3 allegations in spite of the Collier rule that is set forth in Alpha Beta. [00:03:17] Speaker 03: And the board, fortunately in that situation, reversed it and said, [00:03:23] Speaker 03: That issue about not taking the matter to arbitration is not part and parcel of a proper analysis of alpha beta or the Collier deferral doctrine. [00:03:35] Speaker 01: what we're talking about. [00:03:37] Speaker 01: The facts here, we have the union backing out, but the employee wanted to continue, right? [00:03:42] Speaker 03: Oh, yes. [00:03:44] Speaker 03: Not unusual. [00:03:47] Speaker 03: We have the general dynamics case where the union also. [00:03:52] Speaker 01: But you're saying based on that, that there was a resolution that ran contrary to the employee's interest. [00:03:58] Speaker 03: And in fact, it is so filled with due process for that employee's [00:04:04] Speaker 03: protection and rights because it includes a step in the grievance and arbitration process beyond the employer's involvement. [00:04:17] Speaker 03: It provides an avenue for the employee to address directly with the union's executive committee, which is what happened here. [00:04:26] Speaker 03: why it should proceed to arbitration. [00:04:30] Speaker 03: And the administrative law judge in this case said, well, they never told her, we're speculating about why they didn't proceed to arbitration. [00:04:43] Speaker 03: That's just frankly not true. [00:04:44] Speaker 03: It obviously evinces evidence that they have not scoured the record because Ms. [00:04:51] Speaker 03: Gieselin testified in her hearing [00:04:54] Speaker 03: that the executive committee told her that she was not protected in complaining about her lunch break or her contract limitations. [00:05:07] Speaker 03: And that's why they were not proceeding to arbitration. [00:05:10] Speaker 03: She had a hearing separate and apart from the party's grievance and arbitration, but it's incorporated and in step in our grievance and arbitration process. [00:05:24] Speaker 03: Judge Griffith, this is exactly what I think the United, excuse me, it's actually what Judge Edwards has been asking since the American freight decision in this court. [00:05:41] Speaker 03: We need to have a logical deferral policy in the NLRB. [00:05:47] Speaker 01: Why should that policy be when the employee wants to go forward but the union doesn't? [00:05:52] Speaker 03: Because the employee is represented by the union. [00:05:54] Speaker 03: The parties to the collective bargaining agreement in the name of labor dispute resolution have agreed [00:06:04] Speaker 03: that that is the vehicle for redress of grievances. [00:06:08] Speaker 03: And there's no right under alpha beta to insist that I have a hearing before an impartial arbitrator. [00:06:18] Speaker 01: The parties can resolve that as... That's right, but if you don't get it, does that cut your right off to bring an action here? [00:06:25] Speaker 01: That's the question. [00:06:26] Speaker 01: Yes, absolutely. [00:06:28] Speaker 01: Why should that? [00:06:30] Speaker 01: I can easily imagine instances where the union's interests would not necessarily align with the employees. [00:06:36] Speaker 03: If that's the case, Judge Griffith, that's exactly why the Supreme Court has VACA v. Sipes. [00:06:45] Speaker 03: If there has been a breach of duty of fair representation by the union, but it's not a matter of being aligned with the employer [00:06:55] Speaker 03: There's no evidence of that. [00:06:57] Speaker 03: This union, we have a very robust grievance process in our system. [00:07:04] Speaker 03: We arbitrate over 30 to 40 cases a year. [00:07:08] Speaker 03: There is nothing in cahoots here. [00:07:11] Speaker 03: They made an honest determination that she was in violation of the collective bargaining agreement. [00:07:17] Speaker 03: And according to Judge Edwards, and I think it's absolutely right, [00:07:21] Speaker 03: At that point, the NLRB's involvement ends. [00:07:25] Speaker 02: Which case did not involve a settlement agreement? [00:07:30] Speaker 02: There's no settlement agreement in this case, right? [00:07:33] Speaker 03: Oh, several. [00:07:35] Speaker 02: General dynamics. [00:07:36] Speaker 02: No, in our case, the one in front of us today. [00:07:38] Speaker 03: Well, I think American Freight. [00:07:40] Speaker 02: No, I'm sorry, sorry. [00:07:42] Speaker 02: They didn't reach any settlement in the King Supers case in front of us. [00:07:45] Speaker 03: No, they notified the employer. [00:07:48] Speaker 03: Yes. [00:07:49] Speaker 03: We are not proceeding with her case. [00:07:51] Speaker 03: That's a resolution. [00:07:52] Speaker 02: I'm asking you whether there was a settlement agreement. [00:07:55] Speaker 02: The answer is no, right? [00:07:56] Speaker 02: No, there is not. [00:07:57] Speaker 02: Okay. [00:07:57] Speaker 02: And in the two cases that you cited, I judge Edwards, Plummer's and also in the titanium case, which I guess you weren't talking about, when she said it was a precondition, both those involve settlement agreements. [00:08:11] Speaker 02: Tell me again which one didn't involve a settlement agreement. [00:08:13] Speaker 03: So they involve a settlement that the union wouldn't agree to in plumbers and pipe fitters, but the grievance body did, Judge Garland, the panel did agree that was reasonable, and the NLRB proceeded with their unfair labor practice proceedings anyway. [00:08:33] Speaker 03: Which case are you talking about? [00:08:36] Speaker 03: That is the plumbers and pipe fitters case. [00:08:39] Speaker 03: As I'm reading it, it sounds like there was a settlement agreement. [00:08:42] Speaker 02: In that case? [00:08:43] Speaker 03: Yes. [00:08:44] Speaker 03: They reduced a termination to a suspension. [00:08:48] Speaker 02: It was a settlement agreement. [00:08:49] Speaker 02: Those are the words of the court. [00:08:51] Speaker 02: Right. [00:08:52] Speaker 02: There was no settlement agreement in this case. [00:08:54] Speaker 03: That is absolutely true. [00:08:55] Speaker 03: And there's no requirement under Alpha Beta. [00:08:59] Speaker 03: Which case does not involve a settlement agreement? [00:09:03] Speaker 02: Which case? [00:09:04] Speaker 02: Of board cases? [00:09:07] Speaker 02: Let's begin with our own cases, the D.C. [00:09:09] Speaker 02: Circuit. [00:09:09] Speaker 02: Which cases did not involve a settlement agreement? [00:09:14] Speaker 03: So the one most directly on point is the American Freight Systems case and [00:09:26] Speaker 03: And then, Your Honor, I'm relying on board law where they have said a settlement is not necessary. [00:09:33] Speaker 03: It's a resolution. [00:09:34] Speaker 03: Which case was that? [00:09:35] Speaker 03: Which board case are you talking about? [00:09:37] Speaker 03: General Dynamics. [00:09:45] Speaker 03: And, Your Honor, that really is – the remedy is really not – [00:09:53] Speaker 03: the issue about Collier deferral. [00:09:55] Speaker 03: The issue is have the statutory and contractual issues merged. [00:10:05] Speaker 03: And they do in this situation. [00:10:07] Speaker 03: They are exactly the same facts, the exact same evidence, and they are devoted to the parties having a fair process under alpha beta to vet that issue [00:10:21] Speaker 03: and decide whether there is a contract issue violation or not. [00:10:27] Speaker 03: If they decide there is not, the NLRB should step out of the picture. [00:10:34] Speaker 03: That is the whole point of Collier deferral. [00:10:38] Speaker 03: And if [00:10:40] Speaker 03: Judge Garland, if the concern is that, well, that wasn't appropriate, then the board should have gone to an extra measure and conducted what's called a Spielberg analysis. [00:10:56] Speaker 01: Can I ask you about general dynamics? [00:10:59] Speaker 01: My notes show that in general dynamics, the charging party itself [00:11:04] Speaker 03: Pulled out. [00:11:06] Speaker 01: And so that's different than this case. [00:11:08] Speaker 03: Well, it's distinction without a difference, I would say, Judge Griffith. [00:11:13] Speaker 03: Help me understand that. [00:11:14] Speaker 03: So the union tells him there ain't going to be any money in this. [00:11:17] Speaker 03: He says, well, I think I'll try a different forum then and see if I can get some money. [00:11:21] Speaker 03: Basically what Ms. [00:11:23] Speaker 03: Gieselin is doing in our case. [00:11:25] Speaker 03: That is not the purpose of grievance and arbitration. [00:11:29] Speaker 03: And you know, this is a very important thing to preserve in labor law. [00:11:37] Speaker 03: We have a fair process and it's designed to address wrongs. [00:11:44] Speaker 03: Those things that are waivable get full vetting through our grievance and arbitration process. [00:11:52] Speaker 03: There's no guarantee of a remedy or a settlement. [00:11:56] Speaker 03: They adjudicate the merits of the claim and they did in this case and they told her you were wrong to do what you did. [00:12:05] Speaker 03: We're not going to proceed and try and recover any money for you and there's no requirement under the Collier Doctrine or any of its iterations before the board or the courts that there be a quote monetary remedy of anything or a settlement for that matter. [00:12:24] Speaker 03: They made their good faith efforts, and if Ms. [00:12:26] Speaker 03: Gieselin didn't like that and she thought there was perversion or corruption within the system, that's what we have Vaca v. Sipes for, and that is not an issue in this case. [00:12:39] Speaker 03: She did not pursue that. [00:12:42] Speaker 03: So, you know, I said that we started this with confusion. [00:12:47] Speaker 03: I think Judge Edwards aptly described it as evolving to [00:12:53] Speaker 03: recalcitrant with the board continually superimposing new requirements under the Collier standard. [00:13:05] Speaker 03: And in fact, Judge Edwards in the Plumbers and Pipefarers case issued the strongest admonition I have ever seen. [00:13:16] Speaker 03: that we are getting impatient with the board doing this. [00:13:20] Speaker 03: And we, with this recalcitrance towards this Collier doctrine, we will be in a position of reversing cases on less significant cases than the one presented in plumbers and pipe fitters. [00:13:38] Speaker 03: Why do you think American freight is on point? [00:13:41] Speaker 03: Well, I think it's completely dispositive, Your Honor. [00:13:45] Speaker 04: It was actually a committee of unions. [00:13:46] Speaker 04: Yes, absolutely. [00:13:47] Speaker 03: But a union and employer reps. [00:13:51] Speaker 04: Right. [00:13:52] Speaker 03: Yep. [00:13:53] Speaker 04: And I... Same thing that happened here? [00:13:55] Speaker 03: Well, I think, as I said earlier, Your Honor, I think our system is even better than that, because we do have the committees in Step 1, 2, Steps 1, 2, and 3, [00:14:07] Speaker 03: And then the employee has a right to appeal directly to the executive board of the union to understand why it is. [00:14:19] Speaker 03: I think it's actually advanced in my estimation. [00:14:27] Speaker 03: And so when they made that decision, the contract issue and the statutory issue were synonymous. [00:14:35] Speaker 03: There was no difference. [00:14:36] Speaker 03: And they said, we're not proceeding to arbitration. [00:14:40] Speaker 03: That's the end of the story. [00:14:42] Speaker 03: I think Your Honor has pointed out absolutely accurately, NLRB, step back. [00:14:48] Speaker 03: You have no more role in this process. [00:14:53] Speaker 03: But the recalcitrance continues. [00:14:56] Speaker 03: They continue to issue these complaints. [00:14:59] Speaker 03: And so let me just say that as far as the enforceability of the board's order in this case, Judge Edwards asked for an analysis of what I said, alpha, beta. [00:15:18] Speaker 03: I have my time up. [00:15:19] Speaker 03: If I can finish this thought, I'm reserving two minutes, but if I could just finish this thought. [00:15:24] Speaker 03: He asked for there to be an assessment of alpha, beta, and USPS, and he gave specific citations to that case. [00:15:36] Speaker 03: What the board, the ALJ, because the board never reviewed Collier, they simply said were rubber stamping [00:15:44] Speaker 03: the findings of the ALJ. [00:15:47] Speaker 03: The ALJ didn't even review Alpha Beta or USPS. [00:15:51] Speaker 03: She reviewed a motion for summary judgment that the board took up at the time and remanded because they said there were fact issues. [00:16:01] Speaker 03: That is not a change in direction on Collier. [00:16:06] Speaker 03: Thank you, Your Honors, and I will reserve time. [00:16:10] Speaker 03: Can you just hold for one second? [00:16:11] Speaker 03: Does anybody have any other questions? [00:16:14] Speaker 01: If you want to ask them. [00:16:15] Speaker 01: Yeah, please. [00:16:19] Speaker 01: The expanded remedy issue is a pretty important issue here and you haven't even addressed that. [00:16:24] Speaker 01: I agree. [00:16:26] Speaker 03: I think the Supreme Court has decided this and you had decided that the case that was on review, the Southwest Healthcare and Southwest Ambulance case. [00:16:38] Speaker 03: And, you know, this idea of enhanced remedy was Leif Solomon's idea. [00:16:47] Speaker 03: And this complaint, and you all have decided that that violated the law, that appointment. [00:16:54] Speaker 03: It was a temporary appointment. [00:16:57] Speaker 02: I want to talk about the merits of the argument, not about the appointment. [00:16:59] Speaker 02: I'm sorry. [00:16:59] Speaker 02: Talk about the merits of the argument, not about the appointment. [00:17:02] Speaker 03: Yes, but my defense to the enhanced remedy is it's not the bog of Lagamaki that keeps referring in the case law. [00:17:13] Speaker 03: This is a punitive measure. [00:17:16] Speaker 03: It is a compensatory measure. [00:17:18] Speaker 03: There is no board authority for doing so, but especially when [00:17:22] Speaker 03: the Leif Solomon was told that he is not sitting. [00:17:28] Speaker 02: Can I just say again, that issue is not before us now. [00:17:31] Speaker 02: The appointment of Leif Solomon is not before us. [00:17:34] Speaker 02: No, no, I agree. [00:17:35] Speaker 02: Please address only the question of whether the remedy is legal or not. [00:17:39] Speaker 03: And I say that it is not because the enhanced remedy [00:17:44] Speaker 03: is nothing more than a windfall. [00:17:46] Speaker 03: It's not a make-all remedy. [00:17:49] Speaker 03: And the whole point of it was to redress, according to the board, to deter employers. [00:17:57] Speaker 03: That's punitive damages. [00:18:00] Speaker 03: That's the express finding of the board. [00:18:02] Speaker 03: And that's punitive damages. [00:18:05] Speaker 03: Furthermore, Judge Garland, the [00:18:07] Speaker 03: it when there was a subpoena when they tried to amend this complaint to add this enhanced remedy we issued a subpoena they opposed it and said no we're not going to have any hearing evidence on that because because we have the right to promulgate this [00:18:26] Speaker 03: this rule and they said, and this is a perfect case for having this rule because they have wrought havoc on this woman's livelihood. [00:18:37] Speaker 03: That is punitive damage language. [00:18:41] Speaker 03: That is not authorized by this statute. [00:18:45] Speaker 03: So for all those reasons, that remedy is unenforceable. [00:18:54] Speaker 02: A member of Miss Amara descent goes through four different examples. [00:19:00] Speaker 03: Yes. [00:19:01] Speaker 02: The fourth example is the windfall you're talking about, right? [00:19:03] Speaker 02: Yes. [00:19:04] Speaker 02: The third example is one he says might be acceptable. [00:19:10] Speaker 02: Do you think that the third example violates the statute or just is bad policy? [00:19:14] Speaker 02: The only argument I saw you make with respect to number three is it's bad policy. [00:19:19] Speaker 02: could lead to gaming the system, et cetera. [00:19:22] Speaker 02: Right. [00:19:23] Speaker 02: Am I right about that? [00:19:24] Speaker 02: I think you're right. [00:19:25] Speaker 02: All right. [00:19:25] Speaker 02: So as to the fourth, which you think violates the statute itself, we don't know in this case whether the fourth would apply here or not, right? [00:19:35] Speaker 02: We won't know until the compliance proceeding. [00:19:38] Speaker 03: Well, right, and I think that's right, Your Honor, but the issue [00:19:43] Speaker 03: that we are trying to address is the entitlement to those damages, not what the calculation is. [00:19:49] Speaker 02: Well, if the calculation doesn't fall into Category 4, we don't have a Category 4 problem. [00:19:56] Speaker 02: So my question is, what would [00:19:58] Speaker 02: what is wrong with waiting until the compliance proceeding to determine whether it's a Category 4? [00:20:07] Speaker 02: That is, if 1 through 3 do not themselves violate the statute but may have policy arguments which we'll have to resolve, but assume for the moment we resolve the policy arguments against you. [00:20:20] Speaker 02: Is there anything wrong, unlawful, inappropriate beyond our power to put off [00:20:28] Speaker 02: the question of whether the windfall example is lawful unless we have a windfall example in front of us. [00:20:36] Speaker 03: There's nothing wrong with it, Your Honor, but I'd suggest that if the first premise of my argument is the complaint is dismissed and therefore the request for remedy is a moot point. [00:20:49] Speaker 02: You mean under alpha, beta, et cetera? [00:20:51] Speaker 02: Yes. [00:20:51] Speaker 02: Yeah, I understand that, but otherwise not. [00:20:54] Speaker 02: That's correct. [00:20:55] Speaker 02: Sorry, Your Honor, for taking no reason to be sorry. [00:20:57] Speaker 02: We asked you questions. [00:20:58] Speaker 02: We'll hear from the other side. [00:21:06] Speaker 00: Good morning, Amy Ginn for the Labor Board. [00:21:08] Speaker 00: I will start with talking about the remedy because that's where we left off. [00:21:14] Speaker 00: In terms of the remedy here, this is not an enhanced remedy. [00:21:18] Speaker 00: This is a change to how search for work and interim employment expenses are calculated. [00:21:25] Speaker 00: Discriminities have been entitled to that type of make-hole relief since 1938. [00:21:31] Speaker 00: In terms of how it is awarded, the board has changed here how they will be calculated and that there's no cap based on a discriminant's interim earnings. [00:21:41] Speaker 01: Why not cut off the search for work expenses at a windfall? [00:21:46] Speaker 00: What the board here said is that they want to treat search for work expenses like every other type of make or leave. [00:21:53] Speaker 01: So, for example, if there are other windfalls, I get that. [00:22:00] Speaker 01: Why create yet another one? [00:22:02] Speaker 01: When you have a chance to fix it, I mean, that would resolve the question, wouldn't it? [00:22:08] Speaker 01: It's not punitive in that case if there's no windfall? [00:22:11] Speaker 00: It's certainly not punitive in that case, in any case but the, quote, category four case. [00:22:17] Speaker 01: However, here the board is treating these types of expenses- So you do, you do, I'm sorry, sorry to interrupt, but are you acknowledging that the category four case is in fact punitive? [00:22:28] Speaker 01: If you can find- No. [00:22:29] Speaker 00: You're not? [00:22:29] Speaker 00: Okay, I'm sorry. [00:22:30] Speaker 00: No, I'm not acknowledging that that category is punitive, just that there's no question as to any other category. [00:22:34] Speaker 00: No issue has been raised as to any other category. [00:22:36] Speaker 00: I see, okay. [00:22:37] Speaker 00: In terms of this idea though, that an employee could go out and make significantly more money. [00:22:43] Speaker 00: from a new job than from the job that they were unlawfully fired from. [00:22:47] Speaker 00: In that instance, but it took them some expenditures to get that new job making this additional money. [00:22:52] Speaker 00: And that's the situation that seems to be causing concern here. [00:22:56] Speaker 00: In that type of situation, with other types of makeover relief, such as health insurance benefits, if an employee goes out and gets another job where they're making significantly more money, so there's no back pay wages due to them, for example, [00:23:10] Speaker 00: but they have to buy their own health insurance. [00:23:13] Speaker 00: They still get reimbursed by the employer for the health insurance benefits that are part of their make-over relief. [00:23:21] Speaker 00: And this way search for work expenses are treated the same as health insurance benefits or any other type of make-over relief. [00:23:29] Speaker 00: And that is one of the main reasons that the board cited here for wanting to change the way these expenses are calculated to comport with other types of make-over relief. [00:23:38] Speaker 02: You're not accepting the premise that this is a windfall in category four, is that right? [00:23:43] Speaker 00: That's correct. [00:23:44] Speaker 02: You think there are different categories of injury, one of which is the expenses, and they're just getting their expenses back. [00:23:51] Speaker 02: Is that right? [00:23:52] Speaker 02: I'm sorry, there are different... There are different categories of injury that have occurred here, and in order to make them whole from those injuries, from that category is to give the amount of money of the expenses, the costs of looking for work. [00:24:08] Speaker 00: Right, what they've been, what they have lost out on. [00:24:11] Speaker 02: What about the possibility of waiting to find out whether this is a category four issue or not? [00:24:18] Speaker 02: I take it that the board thinks that this is a relatively unlikely hypothetical, is that right? [00:24:23] Speaker 00: I mean, the board hasn't taken a specific position on the likelihood, but that's true. [00:24:28] Speaker 00: I mean, the board stated in its decision, even if this type of situation were to arise, the board still felt that making this type of make-all-relief consistent with other types was an important purpose under the act. [00:24:40] Speaker 02: Is there any problem with our waiting until there's a compliance proceeding so we may not have to decide this question? [00:24:47] Speaker 00: No, Your Honor. [00:24:48] Speaker 00: There's not. [00:24:51] Speaker 00: In this case, there is a remedy now as a matter of law in the board's order. [00:24:55] Speaker 00: Objection has been taken to that remedy, and the board, of course, has tried to state why that remedy is enforceable by this court. [00:25:03] Speaker 00: But, of course, we do not know any specific expenses yet for Ms. [00:25:07] Speaker 00: Gieselin, and that will be determined in compliance. [00:25:09] Speaker 02: Could you say a lot now about Collier and Alpha Beta issue? [00:25:13] Speaker 04: Sure. [00:25:13] Speaker 04: And why is this different from cases like American Freight? [00:25:17] Speaker 00: Well, in this case, there's no mutual resolution whatsoever of this issue. [00:25:22] Speaker 00: There's nothing mutual about any, there's no settlement, there's no informal agreement between the union and King's Supers over this issue. [00:25:30] Speaker 04: It's simply that the union... Where did we ever say there has to be a mutual resolution as distinguished from and agreed [00:25:40] Speaker 04: grievance arbitration procedures that the parties faithfully follow. [00:25:43] Speaker 04: That's a mutual resolution. [00:25:45] Speaker 04: In other words, you have a, you sign a contract, you say if there's a dispute, this is the way we're going to proceed with it. [00:25:51] Speaker 04: And we all agree. [00:25:53] Speaker 04: And the union can faithfully say, I don't think so. [00:25:56] Speaker 04: And in this process, it goes up and she could appeal it within that process. [00:26:02] Speaker 04: And if there's a breach of duty or fair representation, that's where you clean it out. [00:26:06] Speaker 04: If there is one, I'm not getting it. [00:26:10] Speaker 00: Your Honor, here the judge applied Collier and applied the United States Postal Service case, which is [00:26:19] Speaker 00: the exact situation that we have here, where the union refused to process the employee's grievance to arbitration. [00:26:24] Speaker 00: There's no evidence the refusal was unlawful or motivated to avoid deferral. [00:26:29] Speaker 00: Again, there's no evidence of that here. [00:26:31] Speaker 00: We do not know the reason that the union withdrew the grievance and declined to take it to arbitration. [00:26:36] Speaker 00: We know that Gieslin pursued everything she could [00:26:40] Speaker 00: to have the union take it, but we don't know why they did not. [00:26:44] Speaker 00: And there's no distinction here with the USPS case where the board said that the company did not mean its burden for deferral. [00:26:53] Speaker 04: And the board analyzed USPS? [00:26:55] Speaker 04: I missed it. [00:26:55] Speaker 00: Yes, that's correct. [00:26:56] Speaker 00: The judge explicitly relied on USPS in this case. [00:27:00] Speaker 04: There's some analysis in the weighing? [00:27:01] Speaker 04: I mean, it's part of it. [00:27:03] Speaker 04: I mean, the line of cases we're talking about, I guess you can cut the line. [00:27:07] Speaker 04: The line of cases we're talking about is if the parties have a grievance arbitration procedure available, you should leave the parties. [00:27:14] Speaker 04: And this is clearly, there's no distinction between the ULP and the contractual dispute, none. [00:27:21] Speaker 04: They may be coterminous in the sense that you can find some substantive. [00:27:25] Speaker 04: Sure. [00:27:25] Speaker 04: All right. [00:27:26] Speaker 04: But they're essentially the same. [00:27:28] Speaker 04: The point of these decisions is why is the board fooling around in this area when the parties have agreed to a procedure and no one has breached the procedure? [00:27:38] Speaker 04: The employee has no right to go to arbitration. [00:27:40] Speaker 04: The employee has a right to present it to the union representative for consideration. [00:27:47] Speaker 04: And if you follow that procedure, why isn't that enough? [00:27:50] Speaker 00: And, Your Honor, I would say that's part of the problem that the board found here, is that Geislin herself has no right to arbitration. [00:27:56] Speaker 00: She has no way to pursue this when her union was chosen out. [00:27:59] Speaker 04: She has a right to union representation. [00:28:01] Speaker 00: That's correct, but she also had her rights violated under the, her statutory rights violated, and she is attempting to seek redress for that violation. [00:28:11] Speaker 04: The arbitrator ruled otherwise. [00:28:13] Speaker 04: Do you think the board really would have overturned it? [00:28:15] Speaker 04: If an arbitrator had heard it? [00:28:18] Speaker 00: No, Your Honor. [00:28:18] Speaker 04: I mean, that's the whole point. [00:28:20] Speaker 04: So to say there are her [00:28:23] Speaker 04: legal rights were violated doesn't really say anything. [00:28:26] Speaker 04: We're really talking about contractual claims and so the question is why doesn't the board leave the parties to their contractual remedies? [00:28:34] Speaker 04: There's no overriding unfair labor practice issue here as there can be in some cases. [00:28:41] Speaker 04: The only claim here is a contractual claim which can be read as a ULP but the cases, there are cases that say [00:28:49] Speaker 04: When you're in that situation, let the parties use their own devices, which may include, no, we're not taking this. [00:28:55] Speaker 04: Why? [00:28:56] Speaker 04: Because we see no merit. [00:28:58] Speaker 04: Why is that a bad thing? [00:29:00] Speaker 04: We see no merit. [00:29:02] Speaker 00: Here, Your Honor, the Union didn't say that they saw no merit. [00:29:05] Speaker 00: They said that they wouldn't take the agreements to arbitration, but they did not say why. [00:29:09] Speaker 00: They did not say it was not their place. [00:29:10] Speaker 04: So you're saying the distinction here is the Union didn't put on the record, we see no merit to this case? [00:29:16] Speaker 00: I'm saying we don't know in this case. [00:29:19] Speaker 04: The union had clearly said we see no merit. [00:29:23] Speaker 04: They had written that down in the process and you would see that as different. [00:29:27] Speaker 00: I don't know, Your Honor, if the judge would have seen that as different. [00:29:30] Speaker 04: I know here... No, I'm trying to understand your theory of the case. [00:29:32] Speaker 04: You're defending the board. [00:29:33] Speaker 04: Tell me what your theory is. [00:29:35] Speaker 00: The judge here specifically relied on the fact that there was nothing in the record to say why the union didn't take the grievance. [00:29:42] Speaker 04: And you're embracing that. [00:29:43] Speaker 04: That's the board's position that you're stating on behalf of the board. [00:29:46] Speaker 04: If the union doesn't say... [00:29:49] Speaker 04: we see no merit to it, that's dispositive, and that distinguishes the cases that we're talking about. [00:29:55] Speaker 00: That's not the only factor that's dispositive, Your Honor. [00:29:58] Speaker 00: Tell me what else the board said. [00:30:00] Speaker 00: Sure. [00:30:01] Speaker 00: So the reliance here was on the U.S. [00:30:03] Speaker 00: Postal Service case, again, where the union refused to process the employee's grievance to arbitration. [00:30:08] Speaker 00: There was no evidence there, nor is there evidence here that the union's refusal was unlawful or motivated to avoid deferral. [00:30:15] Speaker 00: And that's the same situation here. [00:30:18] Speaker 04: Is that reasoning that's helpful? [00:30:23] Speaker 04: I mean, I'm not, I don't get it. [00:30:24] Speaker 04: There was no evidence that the union did anything unlawful. [00:30:27] Speaker 04: So the only thing you're missing then is the union has to say, incidentally, we didn't do anything unlawful and we found no merit. [00:30:35] Speaker 04: So if they had said, and we found no merit, then we're okay. [00:30:40] Speaker 00: Again, I can't say, Your Honor, what the judge would have said in or what, you know, what the judge or the board would have said in that situation. [00:30:46] Speaker 00: Um, but here there is reliance on the fact that the union refused to go to arbitration. [00:30:53] Speaker 00: We don't know why and that Gieselin had exhausted all the procedures available to her and she could not. [00:30:59] Speaker 04: She had an internal appeal with the union, right? [00:31:02] Speaker 04: She did. [00:31:04] Speaker 04: Okay. [00:31:04] Speaker 04: There's nothing to indicate that there was anything wrong with that. [00:31:06] Speaker 04: And that internal appeal [00:31:09] Speaker 04: by its terms, no one's doubting, it's an assessment of the merits of the employee's claim. [00:31:13] Speaker 04: That's what it's there for, right? [00:31:16] Speaker 00: Right. [00:31:16] Speaker 00: There is a hearing and discussion of, there's an opportunity for questions and a discussion of the claim. [00:31:20] Speaker 04: So we know why the union didn't go, because I didn't think there was any merit, which answers your question. [00:31:27] Speaker 00: I would still say that's speculative, that we don't know. [00:31:29] Speaker 00: We know that the union heard certain things about her claim, and there were questions. [00:31:34] Speaker 00: We don't know everything that was discussed, and we certainly don't know the specifics of their reason. [00:31:39] Speaker 04: I mean, I understand the lines and I can understand if maybe your concern was the union says, well, you know, maybe there's something here. [00:31:47] Speaker 04: We don't have the money for arbitration now. [00:31:49] Speaker 04: And so they're essentially saying, try it with the board. [00:31:53] Speaker 04: As a distinguished from the union is saying, we've let you take it all the way through and we're not buying it. [00:31:59] Speaker 04: We don't think you have a case here and we're not [00:32:02] Speaker 04: We're making a merits determination. [00:32:04] Speaker 04: We're not going to pursue it. [00:32:05] Speaker 04: Now, the company has certainly given its answer on the merits, and the union doesn't disagree with that answer on the merits, as best I can see. [00:32:12] Speaker 04: Were you saying that isn't there? [00:32:15] Speaker 00: That isn't there. [00:32:16] Speaker 04: So that's really your only answer to me. [00:32:18] Speaker 04: That's the only way you can dispose of these other cases, right? [00:32:21] Speaker 00: Well, in terms of some of the other cases, I mean, there were mutual resolutions. [00:32:27] Speaker 04: Let me just ask you one thing, because I'm sorry to interrupt. [00:32:30] Speaker 04: I don't remember the answer to the question. [00:32:33] Speaker 04: Did the board say, either the board or the AAL trade that they're affirming, they say, that's what bothers us. [00:32:43] Speaker 04: The union hasn't said they found no merit. [00:32:47] Speaker 00: The U.S. [00:32:50] Speaker 04: Postal is kind of garbage the way it's written. [00:32:53] Speaker 04: So I'm asking you more than, don't just say U.S. [00:32:56] Speaker 04: Postal. [00:32:57] Speaker 04: I know where you're about to go. [00:32:58] Speaker 04: Don't go there, okay? [00:32:59] Speaker 04: Okay. [00:32:59] Speaker 04: All right. [00:33:00] Speaker 04: We're together. [00:33:00] Speaker 04: So now tell me, did the board say, our concern here is the union did not ever say they were declining to go because they saw no merit? [00:33:11] Speaker 00: The judge said the union executive committee does not share the reasons behind his decision and the record only contains speculation as to why the union declined to arbitrate her grievance. [00:33:21] Speaker 00: I think that's the clearest answer. [00:33:24] Speaker 04: You've been very patient with me, thank you. [00:33:27] Speaker 00: And you with me, thank you. [00:33:31] Speaker 00: I think, so in terms of discussing then the remedy and the deferral issue, I would just say in terms of the violations found, we do rest on our brief if there are questions as to any of the analysis. [00:33:47] Speaker 00: I'd be happy to answer those questions. [00:33:51] Speaker 02: Is there anything special about the language of the collective bargaining agreement here on the question of whether all ULPs have to go through arbitration or the grievance process? [00:34:04] Speaker 00: Not that I'm aware of, Your Honor, and no argument was made to that effect, that the grievance and arbitration article in this particular contract had something... Different than others. [00:34:17] Speaker 00: Different, right, or unusual. [00:34:21] Speaker 02: Okay, further questions? [00:34:23] Speaker 02: No. [00:34:23] Speaker 00: Okay, thank you. [00:34:24] Speaker 02: Thank you very much. [00:34:28] Speaker 02: We'll give you another minute. [00:34:33] Speaker 03: Thank you, Your Honor. [00:34:34] Speaker 03: Judge Edwards, let me just point out, I think I probably said it in haste, but Ms. [00:34:40] Speaker 03: Gieselin testified, and it's in the appendix at 143, she testified that [00:34:48] Speaker 03: and direct answer to a question, what did the executive board tell you as to why they were dismissing your grievance? [00:34:55] Speaker 03: Answer again, because I should have went to sack the groceries without asking about my lunch or my contractual rights, that I should have waited until I sacked the groceries and then filed the grievance. [00:35:10] Speaker 03: So she fully knew. [00:35:11] Speaker 03: There's enough speculation which the [00:35:14] Speaker 03: ALJ said, that's her term, speculative. [00:35:17] Speaker 03: It's not speculative at all. [00:35:19] Speaker 03: And the board did not analyze any of this. [00:35:22] Speaker 03: They have no reasoned opinion before this court about why they did it. [00:35:27] Speaker 03: Why did they do that? [00:35:28] Speaker 03: Because they said the primary issue in this appeal is the remedy. [00:35:33] Speaker 03: They never [00:35:34] Speaker 03: scoured this record the way they should for this court's review, and this court is so held on many occasions. [00:35:41] Speaker 03: The final thing I would say is this reference to the USPS, I think I pointed this out, but that citation in the ALJ's decision is to a [00:35:53] Speaker 03: It's a summary judgment decision that was remanded. [00:35:56] Speaker 03: It did not decide the merits of that case. [00:35:59] Speaker 03: It's a summary judgment decision about whether it should... You're talking about Postal Service? [00:36:03] Speaker 03: Yes, the one that the ALJ cited to, Your Honor. [00:36:07] Speaker 03: And it's not the one that you directed. [00:36:10] Speaker 03: the board to take into account the 300 NLRB number 29. [00:36:15] Speaker 03: It's 324 NLRB number 129 in 1997, and it's a summary judgment motion that is remanded to the board. [00:36:27] Speaker 03: It's not a board decision. [00:36:29] Speaker 02: Thank you. [00:36:31] Speaker 02: It does say that a precondition of college deferral is that the charging party have the ability to obtain arbitral consideration of the grievance. [00:36:38] Speaker 03: And I think that's the importation of a requirement that has never existed in collier deferral and exactly why Judge Edwards has said in the plumbers and pipe fitters case, stop the recalcitrance, stop adding elements to this formula. [00:36:55] Speaker 03: Thank you. [00:36:57] Speaker 02: All right, we'll take the matter under submission and we'll hear the next case.