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Case number 16-1276 at L, MindTech International Inc.

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at L Petitioners vs. National Labor Relations Board.

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Mr. Baskin for the petitioners, Ms.

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Weitz for the respondent, and Mr. Kaiser for the intervener.

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Good morning.

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Maurice Baskin here for Mintek International.

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In this petition for review from a decision of the National Labor Relations Board, Mintek implemented a non-compete and confidentiality agreement pursuant to language in the management rights clause of its collective bargaining agreement with the Operating Engineers Union.

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And what's that language?

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What's the specific language there?

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Certainly, we rely on the following plain language in the very broad clause of the management rights to issue and amend work rules

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and standards of conduct, discipline, steps, policies, and practices, and to control and regulate the company's property, which includes intellectual property.

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And I passed over the fact that the board itself stated that this agreement constituted work rules.

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It stated that no less than six times in its decision.

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So it's work rules, number one.

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It is regulation of property, intellectual property, number two.

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And on top of that, it's the actions necessary or advisable to fulfill the mission of the company.

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Now, this is all plain language in the Management Rights Clause, and this is a contract coverage case.

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The board did not analyze it that way.

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The board holding, and I quote, was simply that the union did not waive its right to bargain over implementation of the NCCA.

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They have a footnote set and they reach a sense of conclusion.

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They have a footnote with one sentence.

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That does not constitute analysis under the scores of previous cases.

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It constitutes a holding though, right?

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Well, that's debatable because the first, for two reasons.

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Our review is de novo anyway, right?

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I guess it is de novo, but it's also governed by Metropolitan Life, which says if it's not in the board decision, then the board decision is not entitled to... It's a de novo review of the plain language, right?

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That's our obligation under covered by Dr. Wright.

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Yes, if the board had made a holding, and so we can take those in steps, the board's holding appears on page two of the decision.

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It says, it gives three reasons, and on this point, the only reason given is no clear and unmistakable waiver.

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They then repeat that holding later, and then they do drop the footnote.

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And they say that even if the board were to follow the DC Circuit standard on contract coverage, it would not be sufficient.

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Not is not, but if they did, it would not.

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That is dictated.

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Would it make any difference, whatever they said, our obligations to decide at de novo?

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Yes.

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It's unlike everything else, where we give many other things, where we give deference.

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Here, we have to just decide what the plain language is.

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Right, you're not supposed to give deference to the board, even if they had made a holding.

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I guess my point to you is... Not even if they made a holding, even if they gave their reasons in this respect, right?

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They give what is clear, it seems to me, an alternative holding, and now our question is, are they right about the plain language?

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Why isn't that right?

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Because under Metropolitan Life, the integrity of the administration process requires the courts may not accept either appellate counsel's postdoc rationalization or substitute their own for that of the board.

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But we have to substitute our own for that of the board when we review de novo, don't we?

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Yes, but when the board makes an analysis, and I guess it's semantics to some extent, and we accept the challenge that the de novo review of this, you cannot reach it.

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Suppose they had written many pages of analysis on it.

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We came in and did it in overview and said, you know, you didn't really analyze it correctly.

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We analyze it differently.

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We come to the same conclusion.

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Would you then say we have to reverse it?

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If you came to the same conclusion, no, because you'd be coming to the same conclusion as them under that Genova review.

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Today, if we do the Genova review and come to the same conclusion as the footnote, why isn't that exactly the same as what you just said would cause us to not have to review?

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Because they did not make an analysis.

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I know they didn't.

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Do you think I thought they made an analysis?

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I went through a long hypothetical, but what if they had made an analysis?

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I'm sorry?

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I know they did.

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And you said if they had gone through the analysis and we had disagreed with the analysis to come to the same conclusion, we shouldn't reverse.

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Yes.

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What I'm asking you is why that isn't the same logical exercise if they give a conclusion without their analysis and we reach the same result.

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And why wouldn't it be the same?

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It would only not be the same if they did not give the analysis.

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But if it is... They did not give the analysis in the real case.

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Right.

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They did give the analysis in the hypothetical case, but they screwed it up.

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In either case, we do a genova and come to the same conclusion.

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Why shouldn't it be the same result, whether it is with inadequate analysis, like the one before us, or instead of inadequate and incorrect

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It could be the same result.

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We're saying that there's an extra layer here because of their failure to do the analysis, but we're happy to discuss the de novo review.

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If one looks at this language, which the board did not analyze, and you look at it de novo, you are left with

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very clear statements in the contract that plainly authorize this type of rule, policy, whatever you want to call it, that is in the defense of the company's intellectual property.

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You say it's a work rule, is that right?

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Yes.

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Well, the board said that.

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We agree on certain aspects of it.

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Well, you disagreed before, right?

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In the papers below with respect to the mandatory subject of bargaining, you said it wasn't a work rule, right?

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It was pled alternatively.

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Both sides seemed to have flipped in different places.

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I have to confess.

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I was just to point that out, but I didn't mean to raise it.

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So if that's the case, how do we get to this being the plain language?

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You used the word work rules in the management rights section.

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But you don't think it's a work rule for subject of mandatory bargaining.

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except that we're looking at here well we are looking at the board's decision and the board's decision is based on a finding that it is a work well it's a work rule for purposes of mandatory but the subject of mandatory bargaining the question in your document you say that this is all to be done by uh...

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You have a rule of construction, right?

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Plain language, something like that?

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Yes.

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And it doesn't say the language of bargaining.

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It doesn't say the language of law.

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It just says plain, ordinary use, something like that, right?

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Is that approximately right?

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Yes.

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So if you thought it was not a work rule, then why should a union member whose union signed on to this think it's a work rule?

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Well, because we're back to the fact that the board has found it to be, now you're saying that we said, if we said alternative.

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The board found it was a work rule for purposes of what's a mandatory subject, not a work rule for purposes of the ordinary everyday meaning of work rule in your provision, right?

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But we did.

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I have to push back a little bit.

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We did argue repeatedly at different points in this case that it was a work rule, that it was regulating property of the company.

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And for those purposes, it's not a question of whether an employee reasonably interpreted or not.

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That applies under the interference language, the Section 8A1 initiative.

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You're right.

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Here, it's not a question of the reasonable interpretation.

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It's a question of what did the parties bargain about?

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And the question of whether it's a mandatory subject of bargaining is subsumed in the question of if the parties already bargained about it.

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It's not a matter of waiver.

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It's not a matter whether it's mandatory or permissive.

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They bargained about it.

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They reached an answer that allows the company, as in many other companies, to reserve certain rights.

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And this is one of the broadest management rights clauses you'll find when you compare it with the other decisions, unlike, for example, the Regal case, which is one of the narrowest.

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Maybe the broadest, absolutely.

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30 years of following labor law.

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Yes.

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That's awfully broad.

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It is.

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And so when it has this very broad language, this court has said, the parties, by definition, can't think of every conceivable hypothetical grievance.

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And that you don't- How common are these non-competes in this Senate?

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Non-competes are extremely common.

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In fact- In this Senate?

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in a union setting and in what we have.

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They appear in union contexts.

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They do, but there's not a common thing for the union employees, the CBA employees to be CBOs.

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Now, CBAs employees would be also in a non-compete.

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Non-compete is much more common at upper management and middle management levels.

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That is likely true, although there's nothing in the record about it.

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One can Google and see that there are 30 million employees covered by non-competes out in the world.

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They don't separate that.

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What I'm getting is covered by collective bargaining.

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Right.

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They're not seeing any statistics specifically about that question.

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And so you don't have any cases for us to look at to say that a collective bargaining agreement with this broad management rights provision covers

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There appear not to be any cases where this has been addressed before, amazingly enough.

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There were a couple of cases cited by the board.

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It's not too amazing if it's the case that there really aren't that many men who write agreements due to this role.

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If there really aren't that many men who write agreements that cover a bargaining union employee, then it's really not amazing at all that we don't have cases like this.

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And perhaps for that reason, this is a case of first impression on that particular point.

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But in terms of- So it seems to be a new effort by management.

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We haven't seen management try to do something like this before.

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Well, but the reason why it happened here is because you have a company that has a very high-tech process compared to the secret formula of Coke by the administrative law judge.

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They have their own secret formula for this substance that is sprayed onto these furnaces.

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Very high technology issue.

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And they were under a direct threat

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of the work being given away by their main customer to a competitor, using the technology in the minds and the heads of the employees who, unlike other companies, it's not just at the senior levels, but the rank and file employees were the ones using it.

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They were given data sheets containing all the secret ingredients.

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They were given two months of specialized training.

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So that's why this came to be in a somewhat unusual setting.

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But it's exactly the kind of thing that a company would need to implement both to protect its business and to set standards and to set work rules and, bottom line, protect its

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Which is your stronger argument, that it's not a subject of mandatory bargaining or that it's covered by the CBA?

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We think that it's covered by the CBA as an overwhelming argument.

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It's an inclusive argument based on your case law and the plain language of the CBA.

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I always believe the plain language is the strongest.

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I think the court has said so too.

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The mandatory substitute bargaining raises interesting issues, but frankly you do not need to reach them.

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That's why we let off the brief with it.

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The government, understandably, waited until very late and then spent eight pages articulating reasons that were nowhere in the board's decision.

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and therefore can't be given any credence, just arguments of counsel.

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And so looking at it, because I need to reserve a little time for rebuttal if... Judge Santel has a question.

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Yes.

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Oh, I wasn't sure I did.

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If Judge Santel has a question.

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You talk about the plain language it had out of deciding the case, but isn't the argument, with respect to the workers at least, over what the plain language means?

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That's always the argument when you have a plain language argument, I guess.

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But if the government thinks it ain't that plain, is that not true?

[00:12:25] Speaker 05:
Well, I suppose that is an argument, but it's a weak one.

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Because what could be stronger than you have work rules in the document, you have the board itself six times saying that this is work rules.

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So there is no more argument.

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The board has conceded that position.

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The board, not the general counsel, the board has conceded it.

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Speaking of plain language, how does that work in the at-will employment issue?

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I mean, isn't the plain, if you start with the plain language here in the collective bargaining agreement, the at-will nature of the relationship lasts for six months, and then it changes to a different relationship.

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Yes, and all that, and again, actually plain language supports us because the document itself doesn't say that they are at will.

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It says this agreement does not affect the employee's status.

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That's all that it says.

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It says, look somewhere else for what your status is.

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Not to mention the fact that in the first six months and at the time when they signed this, they were at-will employees.

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So this agreement does not affect the status.

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The board reinterpreted the agreement to say that you are now at-will employees and because of the agreement.

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But it wasn't standard there.

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Aren't we supposed to see what a reasonable employee would think looking at Article 12 and whether she would be

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confused and anxious about whether she's at will or not?

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Isn't that?

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Exactly.

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A reasonable employee, not under any conceivable theory, and no employee asked about this, no employee claimed to misunderstand, as the board speculated, whether the collective bargaining agreement even applied.

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Not only that, an administrative law judge of the United States government found that this could not be reasonably construed by any employee to believe that it had overridden the party.

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We have to defer to the

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board, not to an administrative law judge of the United States.

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But on the question of what is reasonable, the board is supposed to be applying a standard of reasonableness.

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Doesn't it make sense that if a judge doesn't find it?

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Well, we have lots of cases where different judges have different views about what's reasonable and that doesn't resolve the matter for the next court.

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But every now and then a majority panel of this court says that one of the judges has his own panel is not being reasonable.

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And that goes to the whole question of the Lutheran village reasonableness test.

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Is the board of really applying what's reasonable, or are they just taking a conceivable notion that someone could come up with?

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Can I ask you about the interference with relationships section?

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It says, employees shall not directly or indirectly solicit or encourage any present or future customer or supplier to terminate or otherwise alter his relationship with the company.

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right?

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Yes.

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And the board says, well, Section 7 protects asking customers to boycott the respondent's products or services.

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You agree with that part, right?

[00:15:14] Speaker 06:
Yes.

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Well, if that's the case, doesn't this seem to be a direct interference with the Section 7 right to ask for a boycott?

[00:15:22] Speaker 06:
Not if you look at the context of the document.

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I thought you wanted me to look at the plain language.

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I'm looking at the plain language.

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The plain language says

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solicit or encourage any customer or supplier to alter his relationship with the company.

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If I ask a supplier to boycott the company or customer, doesn't that constitute a request to alter or terminate?

[00:15:49] Speaker 05:
I'm sorry, I don't see the word boycott in there.

[00:15:51] Speaker 06:
No, no, that's part of my hypothetical.

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If I ask

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a customer to boycott the respondents your product or services, which you admitted is protected by Section 7.

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Isn't that in violation of something that says I can't encourage a customer to terminate or otherwise alter his relationship with the company?

[00:16:19] Speaker 05:
And reading the plain language in the context of the agreement, we just don't separate them.

[00:16:25] Speaker 06:
The court doesn't separate them.

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Assume we don't look at the context for a moment.

[00:16:30] Speaker 06:
Then do you agree that this section is in conflict with Section 7?

[00:16:35] Speaker 06:
No, I won't concede that.

[00:16:37] Speaker 06:
Sorry.

[00:16:38] Speaker 06:
No, we don't have to be sorry, but now you have to give a reason, not just that you would lose.

[00:16:44] Speaker 05:
What's the reason?

[00:16:48] Speaker 05:
Well, because this language cannot be divorced from its context.

[00:16:52] Speaker 06:
I will let you get to context, I promise.

[00:16:55] Speaker 06:
The language itself, by itself, is there anything in the language that doesn't put it in conflict with the hypothetical that I just gave you about Section 7?

[00:17:04] Speaker 05:
These words, terminate or otherwise alter relationship with the company, do not on their face address Section 7 rights at all.

[00:17:12] Speaker 06:
I see.

[00:17:13] Speaker 06:
So if I ask an existing customer to boycott the company and no longer deal with the company, you don't think that that, in plain language, is asking them to alter their relationship with the company?

[00:17:26] Speaker 05:
I would say, no, I don't.

[00:17:30] Speaker 05:
I don't read them that way.

[00:17:31] Speaker 05:
And particularly, if I may... No, no, we'll get to the context.

[00:17:35] Speaker 05:
I want to know why you don't read it that way.

[00:17:37] Speaker 05:
Well, because a boycott has, and Section 7 rights have very specific meanings that are not necessarily termination or altering of a relationship.

[00:17:50] Speaker 05:
These phrases just don't address plainly

[00:17:55] Speaker 05:
It's certainly ambiguous.

[00:17:57] Speaker 05:
It's arguable that they do.

[00:17:58] Speaker 06:
Could a reasonable employee read this as saying that if he were to ask a customer to boycott the employer, this would be asking him to alter his relationship with the employer?

[00:18:14] Speaker 05:
Absolutely not.

[00:18:16] Speaker 05:
No reasonable employee could read it.

[00:18:18] Speaker 05:
I'm not allowed to say context again?

[00:18:20] Speaker 05:
Yeah, no.

[00:18:21] Speaker 05:
These words alone, I can also say that no reasonable employee did, but okay.

[00:18:27] Speaker 05:
I can't say how a reasonable employee would interpret that.

[00:18:30] Speaker 06:
Okay, all right.

[00:18:30] Speaker 06:
Now give me the context.

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Which part of the context alters?

[00:18:33] Speaker 05:
The entire agreement, beginning with the acknowledgement form.

[00:18:36] Speaker 05:
beginning with the fact that the employee who testified, who instigated this whole thing, said he understood the agreement, was saying he should not compete.

[00:18:42] Speaker 06:
Fine, but no individual employee is what's at issue here.

[00:18:45] Speaker 06:
We're talking about the reasonable employee.

[00:18:47] Speaker 06:
What part of the context makes you read this differently than

[00:18:54] Speaker 05:
chart look at section one actually look at every other phrase of the contract it's all about not competing and preserving confidentiality it's about preserving the company's business says nothing about their nothing excuse me for you saying that sentence adds nothing it adds in the context of they're trying to avoid competition it doesn't say that doesn't in the current did that keep dead read the sentence in question and it has to do

[00:19:27] Speaker 03:
uh... right but this sense is very common to non-competes in opposed to any one of these things will be but it does not that doesn't answer the question of whether uh... in conflict with sections

[00:19:40] Speaker 05:
Correct, but if the entire agreement is about not competing and there's another section that says don't solicit yourself to have our work come to your company.

[00:19:52] Speaker 05:
Now this is simply saying don't cause us to lose business to other people that you're not soliciting for.

[00:20:00] Speaker 03:
It's just dialing down.

[00:20:01] Speaker 03:
Well, for example, a boycott or some kind of abuse.

[00:20:04] Speaker 05:
It is a conceivable reading of that, but when you look at what the entire agreement is about and what the employees are asked to acknowledge at the beginning, they are asked to acknowledge that the company is in a very competitive business, and it's relying heavily on its trade secrets, and it doesn't want the trade secrets stolen, and it doesn't want them to be given to the competitors.

[00:20:25] Speaker 05:
The horse probably dead by now, sir.

[00:20:28] Speaker 05:
I accept that.

[00:20:29] Speaker 05:
Thank you.

[00:20:30] Speaker 05:
We can reserve a little time.

[00:20:31] Speaker 06:
Oh, you can't reserve it, but we'll give it to you anyway.

[00:20:34] Speaker ?:
All right.

[00:20:40] Speaker 02:
Good morning.

[00:20:41] Speaker 02:
Eric Weiss on behalf of the Labor Board.

[00:20:43] Speaker 02:
We've divided our time in five minutes.

[00:20:45] Speaker 02:
We'll be going to the intervener union.

[00:20:48] Speaker 02:
I'd like to begin with addressing what I think are two important mischaracterizations of the board's decision and order in this case.

[00:20:55] Speaker 02:
First of all, the notion that the board did not make a holding as to the contract coverage issue, that's clearly not the case.

[00:21:01] Speaker 02:
The court looks at Joint Appendix, page 238, footnote 14.

[00:21:05] Speaker 02:
I think we've already caught that one.

[00:21:07] Speaker 02:
Okay, the board says in no uncertain terms that in its opinion, the contract cannot be fairly read to cover this.

[00:21:15] Speaker 02:
The court is free to think that's incorrect.

[00:21:19] Speaker 03:
That's correct, and the court...

[00:21:22] Speaker 03:
Well, why have they reached that conclusion that they expressed?

[00:21:27] Speaker 02:
I mean, yeah, Your Honor, the board cites this course contract covers standard, which the board is very much aware of.

[00:21:34] Speaker 02:
And then it provides very brief analysis, saying we've read the contract.

[00:21:37] Speaker 02:
We don't think the contract can be barely read to cover this.

[00:21:39] Speaker 03:
So the court before this court, when the medical was on the court,

[00:21:45] Speaker 03:
I did not hear you never heard him say look if you want me to consider something in your opinion, don't put it at the bottom of the page in the foot.

[00:21:55] Speaker 03:
No, put it up where my eyes or how do we know whether the more method is holding or just the.

[00:22:01] Speaker 02:
your i think it's i think it's clearly worded as a holding the court is free to think it's very poor analysis and it's insufficient analysis well it's an abbreviated analysis saying the board said it read the contract it doesn't think it covers it the court is free to dispute that it's a de novo standard of review but i'd also point out that although the board's analysis is very brief it's actually longer than the contract coverage analysis provided by the employer to the board if the court looks at

[00:22:29] Speaker 02:
The exception starting at joint appendix page 219, the employer made a waiver argument, and then it passively cited to contract coverage cases to say it's also not covered.

[00:22:40] Speaker 02:
So the board provided brief analysis, but it was responding to a very brief argument by the employer.

[00:22:45] Speaker 02:
So I think the board clearly made a holding, and it's now a de novo standard of view for this court to interpret the contract using its own reasoning.

[00:22:55] Speaker 02:
And the second mischaracterization which I'd like to address is the notion that the board said that the non-compete and confidentiality ality agreement is a work rule.

[00:23:04] Speaker 02:
That's clearly not the case.

[00:23:06] Speaker 02:
If the court looks at Joint Appendix page 237 of the board's decision,

[00:23:10] Speaker 02:
They say in part, quoting the board, the NCCA applies to individuals both while they are employed by the respondent and after their employment with the respondent has ended.

[00:23:20] Speaker 02:
As to the former, the NCCA includes rules governing.

[00:23:26] Speaker 02:
going further in the paragraph.

[00:23:28] Speaker 02:
In addition, the provisions of the NCCA clearly affect employees' terms and conditions of employment in ways that extend beyond work rules governing employees' conduct in the workplace.

[00:23:37] Speaker 02:
So as we argue in our brief, the board found that the NCCA contains work rules, in part, as applied to active employees, but the document as a whole

[00:23:47] Speaker 02:
which is that the unilateral change that issue here goes beyond work rules and is not itself a work rule.

[00:23:54] Speaker 03:
I therefore is not within the contract.

[00:23:57] Speaker 03:
Uh, correct.

[00:23:59] Speaker 03:
And I'd point out, for example, your honor, that many provisions, I had a real hard time finding consistent reasoning, but either side in this case, it seems to

[00:24:09] Speaker 02:
Well, Your Honor, I'd submit that the board's reasoning is consistent because it's saying this is a unified, you know, a document.

[00:24:16] Speaker 02:
Many provisions extend to employees after they cease working for Mintech.

[00:24:21] Speaker 02:
For months or even years or indefinitely, they are given legal obligations which require them to do things for Mintech, and the board implicitly found that's not a work rule.

[00:24:32] Speaker 06:
Those same provisions.

[00:24:33] Speaker 06:
Are you saying that the board's not holding that everything in here

[00:24:38] Speaker 06:
is not covered by the management rights clause.

[00:24:42] Speaker 06:
Only some things are not covered.

[00:24:44] Speaker 06:
Is that what you're saying?

[00:24:45] Speaker 02:
Well, the board analyzed the NCCA as a whole.

[00:24:48] Speaker 02:
So it said the document as a whole is not covered by the contract.

[00:24:52] Speaker 02:
But as we point out in our brief, that doesn't mean that the employer couldn't unilaterally implement certain portions of the NCCA pursuant to the management rights clause.

[00:25:01] Speaker 02:
For example, it could promulgate

[00:25:04] Speaker 02:
a rule for active employees, and it might have a legal right to do that under the management rights clause.

[00:25:10] Speaker 06:
But what the board is analyzing here is the document as a whole, which is written... So if any part of the document, not... I appreciate you think it's a big part, but if a part of the document is not a work rule and doesn't come within the management rights clause, the whole document has to go out and they can come back with another document, is that what you're saying?

[00:25:31] Speaker 02:
correct your honor, and I mean, it's unclear if having employees sign a contract, this is framed as a contract, is covered by the management rights clause, but for example, I think the employer could clearly implement a rule requiring employees not to disclose confidential information and put it in the employee handbook or whatever other means.

[00:25:51] Speaker 06:
As a code of conduct, because that's specifically mentioned.

[00:25:54] Speaker 02:
Right, standards of conduct.

[00:25:55] Speaker 06:
A standard of conduct.

[00:25:56] Speaker 02:
Right, some way of promulgating that to employees, and I think

[00:25:59] Speaker 02:
The employer would have a very strong argument that it has a contractual right to do so unilaterally under the management rights clause.

[00:26:05] Speaker 02:
But what happened here is employees were asked to sign a contractual instrument, which is framed as a contract between the individual employee and the employer, which includes all of these provisions, many of which apply to active employees and could be considered work rules.

[00:26:20] Speaker 02:
but many of which extend beyond their employment with MINTEC and place certain affirmative obligations on employees, prevent them from working for competitors.

[00:26:29] Speaker 02:
For example, Section 9, if the court looks at that at the NCCA, it's an additional obligation section which says, even after an employee has ceased working for the employer, it has to come and assist the employer in any litigation that the employer reasonably thinks that employee could assist with.

[00:26:45] Speaker 02:
And if they refuse to do so, the remedy provision in the NCCA says, the employer is entitled to go directly to court and seek specific performance or an injunction.

[00:26:54] Speaker 02:
It has all of these affirmative obligations that attach to employees even after they cease working.

[00:26:59] Speaker 06:
But do you think the word work rule in this management rights clause is equivalent to the meaning of work rule under the mandatory subject of bargaining?

[00:27:13] Speaker 02:
No, well, I think the term work rule as it's used in management rights clause would be a mandatory subject to bargaining whenever it was exercised.

[00:27:25] Speaker 02:
But the board's analysis here was not saying it's a mandatory subject.

[00:27:28] Speaker 06:
No, I understand completely your argument.

[00:27:31] Speaker 06:
So I'm just trying to see the pieces of it.

[00:27:34] Speaker 06:
So you would agree that if it is a work rule,

[00:27:39] Speaker 06:
for purposes of mandatory subject of bargaining part of the analysis of the board, then it would also be a work rule for part of the, for the management rights second clause.

[00:27:56] Speaker 06:
I suppose that's- And your argument, I take it here, is some of these things are not work rules, nor fit otherwise, and therefore, the whole thing goes beyond.

[00:28:04] Speaker 06:
Have I got it right?

[00:28:05] Speaker 02:
That's correct, Your Honor.

[00:28:06] Speaker 02:
I think the board was not labeling particular sections as, you know, quote unquote, work rule.

[00:28:11] Speaker 02:
What it's saying is, you know, a given section, insofar as it applies to active employees, carries an implicit threat of discipline, and thus could be characterized as a work rule.

[00:28:22] Speaker 03:
Now, if it were a work rule- Correct.

[00:28:24] Speaker 03:
Would it then be,

[00:28:27] Speaker 03:
covered by the management rights clause.

[00:28:30] Speaker 02:
Absolutely, your honor.

[00:28:31] Speaker 02:
I mean, the management rights clause says the employer has a right to implement work rules.

[00:28:35] Speaker 02:
So the meaning is the same.

[00:28:36] Speaker 03:
So if it's a work rule, then it's not.

[00:28:38] Speaker 03:
And they don't have to bargain, right?

[00:28:40] Speaker 02:
That's correct.

[00:28:40] Speaker 02:
I don't think the board's relying on some kind of legal distinction or is using the term separately in different sections.

[00:28:46] Speaker 02:
What the board is saying is we're considering this document, this contract as a whole,

[00:28:51] Speaker 02:
And a given section, even an individual section, which applies in part to active employees and could be considered a work rule, also applies to former employees.

[00:29:01] Speaker 02:
And in that sense, it is clearly not a work rule.

[00:29:04] Speaker 03:
That may bring me to part of what I think is a fairly simple question that may not have a simple answer.

[00:29:10] Speaker 03:
But can you, you know, we don't just write for this case.

[00:29:13] Speaker 03:
We have to consider what sort of precedent we're making and what is the delineation of the

[00:29:21] Speaker 03:
term work rule that we should create precedent about as to why this is or is not a work rule.

[00:29:28] Speaker 02:
Well, Your Honor, I don't think the court needs to make any holding as the definition of a work rule.

[00:29:34] Speaker 02:
I think the only issue here is whether this provision in the Management Rights Clause, which says the employer can implement work rules and standards of conduct, can be fairly read to cover a requirement that employees sign a contractual instrument that follows them after they cease working for the employer.

[00:29:51] Speaker 02:
And I'd argue that the board has presented the only reasonable or limited interpretation

[00:29:56] Speaker 02:
of the management rights clause, because the employer's interpretation would mean you would have work rules which extend when an employer no longer even works for an employer.

[00:30:06] Speaker 02:
And the employer is calling that a work rule.

[00:30:08] Speaker 02:
And so the board found that the management rights clause does not cover that type of requirement on employees.

[00:30:15] Speaker 02:
And I think the court could make a holding and agreement with that without having to delineate what a work rule is, that term of art means in different contexts.

[00:30:24] Speaker 03:
because it's a very, it's a more easy case here because the N. C. C. A. Is so expansive and because of places say that a part of a outside agreement of N. C. C. A. Or whatever that attaching duties to an employee even after the end of employment is never a work rule.

[00:30:48] Speaker 02:
Well, it's the portion of that, the portion of that that extends past their employment, I don't think can be fairly called the work right now that that's my major good.

[00:30:58] Speaker 03:
Everybody simply has a statement.

[00:30:59] Speaker 03:
I wanted to do it is the absolute position of the board that anything that extends beyond the time of employment is not a work.

[00:31:08] Speaker 03:
we have within the meaning of this matter right cause in particular which i would point out doesn't just say work really is is the phrase work really is there any matter within the meaning of work really in this agreement now we all know that we also use the term workroom more human more generically is the thing to keep you know you backed up to stay within the meaning of that quote well it is the board's position that the workroom can never

[00:31:35] Speaker 03:
obligations on employee beyond employment time or he gets the position of the board only that under this clause he cannot extend beyond that.

[00:31:45] Speaker 02:
Well speaking only for myself since the board didn't make that holding here but I would I would argue that the term if you read the plain and ordinary meaning of the term work rule that that would never mean a requirement that applies to employees who no longer even work for the company.

[00:32:01] Speaker 02:
I think, as we pointed out in our brief, work rule has a particular meaning, which is actually consistent with the very lengthy and very detailed management rights clause here, which is directing employees and their performance of work, controlling the workplace, that sort of thing.

[00:32:14] Speaker 06:
So you did add a sort of a juiced and generous argument in your brief.

[00:32:19] Speaker 06:
So I think that's what Judge Santel is also asking about, which is

[00:32:26] Speaker 06:
Whether or not we don't necessarily have to decide that everything that is not a work rule here would not be a work rule under mandatory subject of bargaining, because you're saying in the context, the kinds of work rules that we're talking about here are ones that affect existing employees.

[00:32:48] Speaker 06:
Is that what you're saying?

[00:32:49] Speaker 02:
I think that's correct, Your Honor.

[00:32:50] Speaker 02:
I mean, I would continue to argue that the plain meaning of work rule, just an ordinary person reading that phrase, would never consider a requirement applying to former employees as a work rule.

[00:33:03] Speaker 02:
But furthermore, what the Court is actually interpreting here is not the generic phrase work rule as a term of art that applies in all cases.

[00:33:11] Speaker 02:
It's interpreting this particular contract and what the parties intended when they negotiate that contract.

[00:33:16] Speaker 02:
And as Your Honor points out,

[00:33:18] Speaker 02:
using traditional terms of interpretation, that term is used in a detailed and lengthy management rights clause to apply to a particular thing.

[00:33:28] Speaker 02:
And the employer's argument to the contrary would make that entire clause superfluous because what the employer is asking for is for these phrases to mean that the employer can do anything it wants as long as it's not expressly prohibited by the contract.

[00:33:40] Speaker 02:
And that's something that parties negotiate over sometimes, but that's not in this contract.

[00:33:44] Speaker 02:
What this contract contains is a very detailed management rights clause, and the board would just urge the court to interpret it in context and find that it does not cover this

[00:33:55] Speaker 02:
Expansive and particular.

[00:33:56] Speaker 06:
Let me answer one more question.

[00:33:57] Speaker 06:
On the mandatory bargaining question about whether something could be a work rule and affect non-employees, what do you do with the Pittsburgh plate class statement that future retirement benefits of active workers are part and parcel of their overall compensation and hence a well-established statutory subject to bargaining?

[00:34:17] Speaker 02:
Well, Your Honor, I guess I would back up a point and say that to determine whether something is mandatory subject to barring the test is not whether it's a work rule.

[00:34:26] Speaker 02:
It's whether it's a term and condition of employment.

[00:34:29] Speaker 02:
So what the Supreme Court was saying there and what we argue in our brief is that many of these provisions are terms and conditions of employment.

[00:34:36] Speaker 02:
It doesn't turn on whether it's a work rule or not.

[00:34:39] Speaker 02:
That's a particular

[00:34:41] Speaker 02:
of employment.

[00:34:44] Speaker 02:
But the board's analysis was not saying this is mandatory subject because it's a work rule.

[00:34:49] Speaker 02:
As I pointed out at the top of the argument, the board actually held that this document goes beyond work rules and is only a quote unquote work rule as it applies to active employees because it carries implicit threat of discipline.

[00:35:01] Speaker 02:
But what the board is actually holding is that this document affects terms and conditions of employees in very substantial ways.

[00:35:08] Speaker 02:
And thus, it's clearly a category two, first national maintenance

[00:35:11] Speaker 02:
a condition of employment.

[00:35:13] Speaker 02:
I mean, this is literally a condition of employment.

[00:35:15] Speaker 02:
If these employees want to continue to work for Mintex, they had to sign this document, which had all these requirements.

[00:35:21] Speaker 02:
So I see that amount of time.

[00:35:22] Speaker 02:
So I just ask that the court enforce the board's order in full.

[00:35:26] Speaker 06:
OK, thank you.

[00:35:34] Speaker 01:
Good morning, Your Honor.

[00:35:34] Speaker 01:
It's Charles Kaiser on behalf of Intervenor Local 150 of the operating engineers.

[00:35:38] Speaker 01:
Please, the court.

[00:35:41] Speaker 01:
To start with, just to address something I heard a little bit earlier, Local 150 doesn't have any collective bargaining agreements that has any non-compete language in it.

[00:35:51] Speaker 01:
I'm aware of any employers who have attempted to have, other than Mintag, have their bargaining employees sign a non-compete agreement.

[00:36:02] Speaker 01:
As to whether or not the non-compete

[00:36:06] Speaker 01:
agreement is covered by the contract.

[00:36:12] Speaker 01:
Nothing in the management rights clause

[00:36:16] Speaker 01:
And the collective bargaining agreement as a whole contemplates another written unilateral employment contract to be entered into by bargaining with employees.

[00:36:26] Speaker 01:
If you look at the contract as a whole, especially the Zipper Clause, the only contract negotiated covering the terms and conditions of the bargaining with employees is the collective bargaining agreement, not some extra employment contract like Mintek tried to have these employees sign.

[00:36:42] Speaker 01:
Well, actually did have them sign.

[00:36:46] Speaker 01:
I'd like to focus on two arguments that support the board's unanimous decision.

[00:36:49] Speaker 01:
And that's the first of which is that the NCCA.

[00:36:52] Speaker 06:
Do they say something about the zipper clause, maybe the LJ did?

[00:37:00] Speaker 06:
I'll find it if you don't have one.

[00:37:02] Speaker 03:
Yeah, yeah.

[00:37:04] Speaker 01:
Go ahead.

[00:37:07] Speaker 01:
The first is that the NCAA is a mandatory subject of bargaining.

[00:37:12] Speaker 01:
Mandatory subjects of bargaining are those matters that are plainly germane to the working environment that affect bargaining units, terms and conditions of employment, and that have an economic impact on the employees.

[00:37:24] Speaker 01:
The agreement that MINTAC unilaterally implemented here easily meets the test.

[00:37:30] Speaker 01:
First, the agreement, as somewhat has been discussed here this morning, it results in lost economic opportunities for the bargaining unit.

[00:37:38] Speaker 01:
The agreement prohibits the employees from working for another company while they're employed for Mintek.

[00:37:46] Speaker 01:
Such a prohibition impacts the employees because if they were to seek temporary work, there's a slowdown at the mill, as the board alluded to.

[00:37:54] Speaker 01:
If they're on layoff, if an employee was terminated,

[00:38:00] Speaker 01:
and was awaiting reinstatement, perhaps pursuant to a grievant-dependent obligation to mitigate damages.

[00:38:05] Speaker 01:
This language would preclude that employee from looking for what to support.

[00:38:08] Speaker 03:
This is a mandatory subject to bargaining unless it's taken out by the management radical.

[00:38:15] Speaker 03:
Is that an accurate shorthand?

[00:38:17] Speaker 01:
Your Honor, that would be correct.

[00:38:18] Speaker 01:
Again, whether or not the union waived its right to bargain over,

[00:38:26] Speaker 01:
this particular agreement, I would say that applying this circuits contract coverage case, I'm going to go back to taking a look at the contract as a whole.

[00:38:36] Speaker 01:
Certainly when we interpret contracts, we're going to look at particular language, but then we're going to look at the document as a whole.

[00:38:43] Speaker 01:
just to make sure that the interpretation that we're arriving at is correct.

[00:38:48] Speaker 01:
And again, there's no interpretation of the collective bargaining agreement that could allow for Mintep to unilaterally implement another employment contract with the disabilities.

[00:38:58] Speaker 01:
And we've heard it referred to this morning a number of times as a contract.

[00:39:02] Speaker 01:
But again, the only person, the only entity with authority to enter into any employment contract covering the terms and conditions of the bargaining unit

[00:39:11] Speaker 01:
is Local 150, the operating engineers.

[00:39:14] Speaker 01:
We are the exclusive bargaining representative.

[00:39:18] Speaker 01:
Not only does the NCCA impact economic opportunities for the bargaining unit, it does establish that the employment relationship between Mintek and the employees is one of at will.

[00:39:33] Speaker 01:
It doesn't simply acknowledge that their status

[00:39:38] Speaker 01:
doesn't change.

[00:39:39] Speaker 01:
It acknowledges that their status as an at-will employee doesn't change.

[00:39:45] Speaker 01:
And that directly contradicts what's been bargained into the collective bargaining agreement.

[00:39:49] Speaker 06:
They agree that it doesn't change it.

[00:39:51] Speaker 06:
So that's not the question, right?

[00:39:53] Speaker 06:
The question is only how a reasonable employee would read it.

[00:39:56] Speaker 06:
There's no dispute between the parties, I believe, that it does not change the provisions of the CBA regarding the at-will, right?

[00:40:06] Speaker 01:
The language of the NCCA says that the employee's status.

[00:40:11] Speaker 06:
I appreciate your argument about how it can be read, but I understand the employer's position to agree that it only applies to employees who are at well during a probationary period.

[00:40:22] Speaker 06:
That's the employer's argument.

[00:40:24] Speaker 06:
That is correct.

[00:40:28] Speaker 01:
Third, Your Honors,

[00:40:31] Speaker 01:
The agreement requires that all employees assign their rights to the company for any inventions that they come up with during the course of their employment.

[00:40:40] Speaker 01:
Again, this is a matter that impacts their compensation.

[00:40:46] Speaker 01:
It certainly makes for it to be a mandatory set of bargaining.

[00:40:49] Speaker 01:
And why is bargaining important here?

[00:40:51] Speaker 01:
Why could it be important here?

[00:40:53] Speaker 01:
It certainly is important here.

[00:40:55] Speaker 01:
Local 150 is the exclusive bargaining representative of these employees.

[00:41:01] Speaker 01:
The NCCA impacts their terms and conditions of employment.

[00:41:08] Speaker 01:
Mintech, when it's all open, what he's asking for, bring it to the table.

[00:41:14] Speaker 01:
Bargain it.

[00:41:15] Speaker 01:
Mintech says they have something important to protect.

[00:41:19] Speaker 01:
Perhaps that's correct.

[00:41:23] Speaker 01:
But that doesn't relieve them from the opportunity to bargain.

[00:41:26] Speaker 01:
They bring it to the table.

[00:41:29] Speaker 01:
You have an NCCA.

[00:41:31] Speaker 01:
In some ways, it looks like it penalizes employees for doing certain things.

[00:41:34] Speaker 01:
Maybe at the table, Mintak says, we don't want the employees to leave.

[00:41:40] Speaker 01:
We'd like to keep them here.

[00:41:42] Speaker 01:
And you can say, incentivize them to stay.

[00:41:47] Speaker 01:
Don't answer into these kinds of ingredients.

[00:41:49] Speaker 01:
Maybe as we're talking about the agreement, Mintak says, we really like to have this.

[00:41:54] Speaker 01:
It's important to me.

[00:41:56] Speaker 01:
As the bargaining takes place, okay, fine, we'll take it to the guys.

[00:42:00] Speaker 01:
18 months, how about 12 months?

[00:42:03] Speaker 01:
How about the fact that this thing doesn't apply during the course of their employment?

[00:42:09] Speaker 01:
Why don't we take the provision out that people have to go to, you can sue them directly.

[00:42:13] Speaker 01:
We've got grievance and arbitration language in our collective bargaining agreement.

[00:42:18] Speaker 01:
If it was that important to MINTEC, they could certainly, under the rules of engagement, bargain it to impasse, if that's what they wanted.

[00:42:26] Speaker 01:
So I see that my time is up.

[00:42:27] Speaker 01:
I appreciate the time this morning.

[00:42:28] Speaker 01:
I ask that this court deny the petition for review.

[00:42:31] Speaker 01:
Thank you very much.

[00:42:34] Speaker 05:
We'll give you two minutes.

[00:42:37] Speaker 05:
I'll be brief.

[00:42:38] Speaker 05:
In that, I just wanted to address a couple of points.

[00:42:40] Speaker 05:
The notion that it can't be a work rule because it's in the form of an agreement is belied by other work rules that are signed by the employees in the new hire kit that they get and spend most of the first day signing, including all of the corporate policies.

[00:42:55] Speaker 05:
There's Joint Appendix 1301.

[00:42:57] Speaker 05:
They signed off on the

[00:43:00] Speaker 05:
basically the employee corporate handbook containing all of the other policies relating to employment.

[00:43:07] Speaker 05:
I also want to come back to the word that I don't believe was uttered in the argument just now.

[00:43:13] Speaker 05:
The word property, the ability of the company to regulate,

[00:43:16] Speaker 05:
and control its property, its other property other than the physical property.

[00:43:22] Speaker 05:
This is what this agreement is all about, is controlling its intellectual property in order to defend its business.

[00:43:29] Speaker 03:
That doesn't answer the question as to whether every part of that agreement is outside the

[00:43:36] Speaker 05:
And that's my final point I'd like to address, Your Honor, which goes to the mandatory subjects of bargaining.

[00:43:45] Speaker 05:
The board seems to take the position that anything that has to do with the conditions of employment, there's a work rule in there.

[00:43:52] Speaker 05:
But then the other items, they're not work rules because they go outside the employment context.

[00:43:59] Speaker 05:
They go to when they are former employees.

[00:44:01] Speaker 05:
And when that happens, and because the board is taking that position, they're violating the Pittsburgh plate glass doctrine because former employees are not covered by such agreements.

[00:44:13] Speaker 05:
And there is no duty to bargain as to the relationships

[00:44:16] Speaker 05:
between a company and its former employees, or its new hires for that matter.

[00:44:21] Speaker 05:
And so we're looking at areas that are outside the bargaining relationship and go to the core entrepreneurial beliefs and needs of the company.

[00:44:32] Speaker 06:
I'm a little bit confused about that.

[00:44:33] Speaker 06:
The part of Pittsburgh plate glass that I read suggests that if you impose on existing employees obligations or benefits that extend after

[00:44:45] Speaker 06:
as a condition of their employment.

[00:44:47] Speaker 06:
That is considered a mandatory subject.

[00:44:49] Speaker 05:
But fairly read, this agreement, the parts that it imposes on the existing employees, those are the workable parts.

[00:44:55] Speaker 05:
The parts that it's imposing only are being imposed on former employees.

[00:44:59] Speaker 05:
They're not being imposed on the existing employees.

[00:45:01] Speaker 05:
Nothing happens to them under this agreement.

[00:45:04] Speaker 06:
But it's a condition of their activity now as an existing employee.

[00:45:12] Speaker 06:
It's not a question of whether it's a work rule.

[00:45:14] Speaker 06:
Maybe I'm unclear what your argument is.

[00:45:15] Speaker 06:
Are we on the mandatory subject of bargaining issue or are we on the covered by issue?

[00:45:19] Speaker 05:
Well, we're trying to address both because the board seems to be trying to have it both ways.

[00:45:24] Speaker 05:
They clearly say some parts of it now are work rules, but the other parts, the parts that are the mandatory subjects of bargaining that weren't bargained about in the Management Rights Clause, are the things that extend beyond the conditions of employment.

[00:45:35] Speaker 06:
They say, as I understood him to say, they are conditions of employment.

[00:45:38] Speaker 06:
subject to mandatory bargaining, whether they're a work rule or not.

[00:45:42] Speaker 05:
But they're not conditions of employment.

[00:45:44] Speaker 05:
They are, by definition, events that can only occur after employing.

[00:45:48] Speaker 05:
But you have to agree to them while you're an employee.

[00:45:51] Speaker 05:
And you have agreed to it, actually.

[00:45:52] Speaker 05:
You're agreeing to it before you become an employee.

[00:45:54] Speaker 05:
But that goes to our new hire argument.

[00:45:57] Speaker 05:
We'll pass on that for the moment.

[00:45:59] Speaker 05:
And to say that, yes, you agree to it then.

[00:46:02] Speaker 05:
But there is no impact, enforcement, remedy,

[00:46:08] Speaker 05:
or any other kind until after you have left.

[00:46:11] Speaker 05:
How do you deal with the retirement benefits mentioned in Pittsburgh?

[00:46:16] Speaker 05:
We believe this is analogous to the parts of that case that dealt with retirees.

[00:46:23] Speaker 06:
And these are former employees.

[00:46:27] Speaker 06:
It's the sentence that I want to address.

[00:46:29] Speaker 06:
To be sure, the future retirement benefits of active workers are part and parcel of their overall compensation.

[00:46:35] Speaker 06:
and hence a well-established statutory subject of bargaining.

[00:46:40] Speaker 06:
So why is this not the same?

[00:46:42] Speaker 05:
And I would be repeating myself, but to say that it's not addressing their, well, certainly not addressing their future benefits.

[00:46:49] Speaker 05:
It addresses events that may happen.

[00:46:51] Speaker 06:
It's a limit on their economic prospects in the future that's part of their deal.

[00:46:57] Speaker 06:
You take our wages, and you agree to this limit on your future, where you can get your future compensation from.

[00:47:06] Speaker 05:
Right.

[00:47:07] Speaker 05:
We think Fairly Red, compared to that sentence, compared to this document, it is different.

[00:47:13] Speaker 05:
It also addresses a core entrepreneurial concern of a company dealing with its intellectual property, and for that reason as well, it's something that a company is entitled to do, that it deals with post-employment situations.

[00:47:26] Speaker 05:
Time's up.

[00:47:26] Speaker 05:
Thank you very much.

[00:47:27] Speaker 05:
Thank you.

[00:47:29] Speaker 05:
A very good argument on both sides.

[00:47:30] Speaker 05:
We appreciate it, and we'll take the matter under submission.