[00:00:00] Speaker 08: Case number 14-1126 at L. Oak Harbor Freight Lines, Inc. [00:00:04] Speaker 08: Petitioner vs. National Labor Relations Board. [00:00:07] Speaker 08: Mr. Kiersenow for Petitioner, Oak Harbor Freight Lines, Inc. [00:00:10] Speaker 08: Mr. Lehe for Petitioner, Kingshurst Local 81 at L. And Mr. Cantor for Respondent. [00:00:50] Speaker 00: May it please the Court, Peter, first now for Petitioner O'Carver. [00:00:56] Speaker 00: O'Carver respectfully requests that this Court grant the Petitioner. [00:00:59] Speaker 03: Sure. [00:00:59] Speaker 03: I'll need to speak a little more into this. [00:01:01] Speaker 03: It may not be the right height for you. [00:01:03] Speaker 03: Maybe you can raise it. [00:01:04] Speaker 00: Petitioner respectfully requests that the Court grant this Petitioner and find that O'Carver did not violate the Act by ceasing contributions to the Oregon Trust Fund or by placing returning strikers on the company's medical plan. [00:01:16] Speaker 00: This case is essentially about three things, waiver, estoppel, and Section 8D of the National Labor Relations Act. [00:01:24] Speaker 00: The company, after lawfully suspending contributions after canceling the subscription agreement, offered to make contributions, and nothing precluded the union thereafter from accepting contributions, especially after the strike concluded on behalf of all employees, but instead it insisted [00:01:42] Speaker 00: that the petitioner sign an interim agreement and subscription agreement before resuming contributions into the trust fund. [00:01:51] Speaker 00: This is essentially an abrogation of the company's Section 8D rights. [00:01:57] Speaker 00: It has a right not to agree to anything. [00:01:58] Speaker 00: It has a right not to sign anything. [00:02:01] Speaker 00: And the board went seriously off the rails in finding that the company was obligated to sign these agreements in order to avoid liability. [00:02:10] Speaker 00: That's essentially what would happen in this particular case. [00:02:14] Speaker 00: We wouldn't be here if the trust funds had simply accepted contributions to the trust fund. [00:02:21] Speaker 00: There are three. [00:02:22] Speaker 03: Can I ask about that? [00:02:23] Speaker 03: Yes. [00:02:24] Speaker 03: I'm a little unclear. [00:02:25] Speaker 03: For purposes of this part of your argument, if you could just accept that you're right about three of them, that is, that three of them could cancel, but as to the fourth, we were to uphold a board, that the cancellation of the fourth one was not permitted, just for the purposes of answering this question. [00:02:44] Speaker 03: Did the board, and I'm talking about now the fourth one then, just about the organ. [00:02:49] Speaker 03: Organ. [00:02:50] Speaker 03: Yeah. [00:02:52] Speaker 03: What was the status quo if in that circumstance where you were not allowed to cancel? [00:03:04] Speaker 00: The status quo irrevocably would have been company medical benefits because the only way that the union and trust funds would permit contributions, a resumption of contributions, was if an interim agreement or subscription agreements were signed. [00:03:18] Speaker 03: But if the cancellation was unlawful, [00:03:22] Speaker 03: Then the status quo is supposed to be what existed under the CBA, right? [00:03:26] Speaker 03: That's sort of the definition. [00:03:28] Speaker 00: Right. [00:03:28] Speaker 03: And under the CBA, it was contributions to the health, to the fund, through the trust, right? [00:03:35] Speaker 00: Right. [00:03:36] Speaker 03: So shouldn't that have been the status quo in that circumstance? [00:03:41] Speaker 00: Your Honor, in that circumstance, there's still one fact that needs to be considered, and that is that the Union refused to accept contributions for Oregon Trust. [00:03:50] Speaker 00: Not if they had accepted contributions for Oregon Trust. [00:03:52] Speaker 07: No, it's not the Union. [00:03:53] Speaker 00: I'm sorry, the Trust Fund. [00:03:55] Speaker 07: Yes. [00:03:56] Speaker 00: the union and the trust fund refused to accept contributions it wasn't the union on behalf of the they were administering the trust funds on behalf of the union the union throughout has been copied on or was part and parcel of the discussions related to refusing to accept funds the trust funds are set up for the benefit of the employees for the benefit of the union members actually you're saying that in that circumstance [00:04:21] Speaker 03: the status quo would have been contributions to the trust fund, right? [00:04:32] Speaker 00: Because of the intervening circumstance, that is, the union refusing contributions, the status quo is refusal of contributions and accompanying medical plan. [00:04:42] Speaker 00: That was the status quo. [00:04:43] Speaker 07: You keep saying the union. [00:04:45] Speaker 00: The trust fund. [00:04:46] Speaker 07: It was the trust fund. [00:04:48] Speaker 00: Exactly. [00:04:48] Speaker 07: No, this is critical. [00:04:50] Speaker 07: You've said it twice now. [00:04:52] Speaker 07: It was the trust fund that notified the employer, your client, that it would not accept these contributions. [00:05:02] Speaker 00: Correct. [00:05:02] Speaker 00: And there were discussions with the union throughout regarding this very factor. [00:05:08] Speaker 00: So what we had is conduct, consistent conduct, on part of the union and the trust funds for over a year and a half that would reasonably lead the employer to believe there had been a valid subscription agreement for the organ trusts. [00:05:22] Speaker 03: This goes to the equity issue. [00:05:24] Speaker 03: That's not what I'm asking about. [00:05:26] Speaker 03: I'll let you get back to your argument. [00:05:28] Speaker 03: I'm just trying to understand this one thing. [00:05:30] Speaker 03: Your position is that the status quo under the CBA was the contributions and with respect to a CBA where you are not allowed to cancel that would continue to be the [00:05:45] Speaker 03: status quo, is that right? [00:05:46] Speaker 03: But you claim they won't let you do it, and so you have an equity argument, or you have an economic problem, right? [00:05:55] Speaker 03: One of those two. [00:05:56] Speaker 00: But for the refusal, I would say that that is correct. [00:05:59] Speaker 03: OK, now with respect to the ones where the board held that you unlawfully canceled, I want you to accept for the purposes of this argument that it was unlawful. [00:06:11] Speaker 03: So what's the status quo for those? [00:06:14] Speaker 00: I think the status quo throughout is you have to take a look at what the actions, the intervening circumstances, the intervening actions of the trust fund and the unions are in that regard, just as within Manitoba Geist, where you have intervening actions on behalf of the party that irrevocably changes the status quo, particularly in this case. [00:06:33] Speaker 00: Remember that the company has an unabridged right [00:06:37] Speaker 00: not to be compelled to sign any agreements. [00:06:40] Speaker 00: That's a subscription agreement, that's an interim agreement, any agreement or agree to any proposal or make any concessions. [00:06:45] Speaker 03: But you have to continue the status quo. [00:06:47] Speaker 03: You have to continue the status quo. [00:06:49] Speaker 03: So that's what I'm asking. [00:06:49] Speaker 03: What was the status quo if you unlawfully canceled? [00:06:54] Speaker 00: Well, if you unlawfully canceled, it was whatever was in the collective bargaining agreement. [00:06:58] Speaker 03: Right. [00:06:58] Speaker 03: And so the status quo would have been contributions, right? [00:07:05] Speaker 03: That would have been the status quo. [00:07:06] Speaker 03: It would not have been the company's plan. [00:07:08] Speaker 00: No, not with respect to the medical benefits. [00:07:11] Speaker 00: It would not have been. [00:07:12] Speaker 00: But there was an intervening circumstance here. [00:07:14] Speaker 00: And that intervening circumstance was the refusal to accept contributions. [00:07:18] Speaker 03: Is your position that the intervening circumstance changed the status quo or that the intervening circumstance gave you [00:07:26] Speaker 03: one of your defenses. [00:07:27] Speaker 00: It did two things. [00:07:29] Speaker 00: It did change the status quo to being company medical benefits, to which the union agreed for that interim period. [00:07:36] Speaker 03: But company benefits were only for the crossovers. [00:07:39] Speaker 03: It wasn't for the strikers. [00:07:41] Speaker 00: But when the company pursuant to express provisions in the subscription agreement [00:07:47] Speaker 00: cancels the subscription rings and then the union says do not give us contributions. [00:07:54] Speaker 07: The trust says do not give us because the trust will only accept contributions on behalf of all the employees, not a subset. [00:08:08] Speaker 07: I mean, this is critical counsel. [00:08:10] Speaker 07: You cannot ignore. [00:08:11] Speaker 00: I'm not ignoring that, Your Honor. [00:08:13] Speaker 07: Well, you keep referring to the union refusing. [00:08:15] Speaker 00: Yes, that's mistaken. [00:08:16] Speaker 07: The union wasn't in control of that. [00:08:18] Speaker 00: The union was involved throughout. [00:08:20] Speaker 07: Whether the trust would accept contributions or not. [00:08:23] Speaker 00: The union was involved throughout this particular matter, and this is done on behalf of the union. [00:08:29] Speaker 00: And when the trust funds refuse to accept contributions, during the bargaining, we have a requirement that an interim agreement and subscription agreement be executed. [00:08:42] Speaker 00: And that butts up against the company's AD right not to have to agree to anything, not to have to sign any agreements. [00:08:49] Speaker 00: Once the company cancels the agreements, pursues the express provisions of the subscription agreement, and then the union and trust funds act consistently with the existence of a valid organ subscription agreement, which was validly canceled, then we have a course of conduct for a year and a half thereafter [00:09:08] Speaker 00: which made it clear to the company, at least, that there was, in fact, existing subscription agreements for all four trusts, that they were valid and canceled, and the union is saying, do not give a subscription agreement. [00:09:21] Speaker 07: So let me be clear. [00:09:21] Speaker 07: The board says it was petitioning your client's burden to show that there was a subscription agreement as to the Oregon trust. [00:09:37] Speaker 07: that your client did not meet that burden. [00:09:42] Speaker 00: And the board, that analysis is incorrect. [00:09:47] Speaker 00: It was a burden to show that, but not that there was necessarily the existence of a subscription agreement. [00:09:52] Speaker 00: That's where the estoppel argument comes in. [00:09:54] Speaker 00: No. [00:09:55] Speaker 07: The board said, based on the record before it, where your cancellation letter said, if there is a subscription agreement, as do the Oregon Trust, [00:10:07] Speaker 07: we are exercising our right to cancel. [00:10:10] Speaker 07: The board said it was your burden, your client's burden, to demonstrate that there was such a subscription agreement that gave you the right to cancel. [00:10:20] Speaker 07: And the board said, you never proved that, and yet you acted as though there were such a right. [00:10:27] Speaker 07: So your response is, as I understand it, well, everybody assumed there was a right, [00:10:35] Speaker 00: The response is that the conduct of the trust funds and the union for more than a year and a half after the conditional cancellation of the subscription agreement would lead a reasonable person to rely to their detriment that there was a subscription agreement. [00:10:53] Speaker 07: Why when you knew that the trust [00:10:58] Speaker 07: would only accept contributions on behalf of all covered employees. [00:11:03] Speaker 07: It would not accept contributions on behalf of a subset. [00:11:09] Speaker 00: The trust in unions never said during this period of time that it would only accept contributions. [00:11:15] Speaker 07: But that was in the agreement. [00:11:17] Speaker 07: It wasn't a question of anybody saying it. [00:11:19] Speaker 00: That's not what we understood, Your Honor. [00:11:21] Speaker 07: Why didn't you understand that when the trust told you? [00:11:25] Speaker 00: The trust did not tell us that. [00:11:26] Speaker 07: It said. [00:11:27] Speaker 07: It's not going to accept on behalf of a subset. [00:11:29] Speaker 00: It didn't say that any, it didn't make any reference to the trust. [00:11:34] Speaker 00: It didn't use that precise word. [00:11:35] Speaker 00: If so, Your Honor, that would only apply to that discrete period between the time when subscription agreements were canceled and until the strike ended. [00:11:44] Speaker 00: Then thereafter, the subscription agreements, they were saying, do not provide us with any type of contributions. [00:11:50] Speaker 00: And the only way you can get back into the subscription agreements, resuming contributions, is by signing an interim agreement and subscription agreements. [00:11:58] Speaker 00: By the way, subscription agreement for Oregon Trust. [00:12:01] Speaker 00: If, in fact, you need a subscription agreement for the Oregon Trust, too, Your Honor, then why prior to September of 2008 was the Trust accepting contributions on behalf of the Oregon Trust? [00:12:12] Speaker 07: But your question starts on an assumption. [00:12:17] Speaker 07: And the Board said the language of the Oregon Trust did not require a subscription agreement. [00:12:24] Speaker 07: And for years, contributions had been made without a subscription agreement. [00:12:30] Speaker 00: and then the union required, trust funds required that a subscription agreement be executed in order to receive contributions from the Oregon Trust. [00:12:39] Speaker 07: When did the trust fund require that? [00:12:42] Speaker 00: Throughout. [00:12:43] Speaker 00: Throughout after this particular period. [00:12:45] Speaker 00: They said, do not give us contributions. [00:12:47] Speaker 07: No, that was the union's position, not the trust fund's position. [00:12:51] Speaker 00: Not until, Your Honor. [00:12:52] Speaker 07: As to the Oregon Trust. [00:12:54] Speaker 00: Your Honor, not until July of 2010, [00:12:58] Speaker 00: At the ALJ hearing itself, did the Northwest Administrator's witness say that they would accept contributions? [00:13:07] Speaker 00: He said a week prior to that, it was determined that he would be permitted to accept contributions if the ALJ would still commit. [00:13:13] Speaker 07: Well, I understand your argument that before they said, well, we think there is one, but nobody ever located it. [00:13:18] Speaker 07: And after that, you sent your letter of cancellation saying, [00:13:22] Speaker 07: If there is such an agreement, we exercise our right to cancel. [00:13:27] Speaker 07: So you accepted the fact that that right arose only if there were a subscription agreement. [00:13:35] Speaker 07: And as I understood the Board, it was saying you never met your burden to show that there was such a subscription agreement as to the Oregon Trust. [00:13:45] Speaker 07: Isn't that what the Board held? [00:13:47] Speaker 00: What the board held is, yes, and what the board fell short of is its own precedent in Manitowoc Ice, where the conduct of a party can lead someone to believe that, for example, in this case, a subscription agreement existed, and then that party, the party who did this leading, so to speak, is stopped from asserting otherwise. [00:14:11] Speaker 07: And so the trust is the party here. [00:14:15] Speaker 07: You keep saying it's the union, but it's the trust that says it won't accept these contributions. [00:14:19] Speaker 07: So you're saying the trust is stopped from accepting, from not accepting these contributions? [00:14:28] Speaker 00: The union and the trust fund were both aware of the circumstances. [00:14:36] Speaker 00: Negotiations going on with the union throughout this entire period of time, from September through the return of the strike, both the union and the trust fund were part and parcel of the discussions with respect to the trust fund. [00:14:50] Speaker 00: to say that somehow the union and trust fund were not at the same time making certain representations would be false. [00:14:57] Speaker 00: The union, when a party has an obligation to speak up where someone in their position would know that there was no subscription agreement. [00:15:06] Speaker 07: So let me be clear about your argument. [00:15:08] Speaker 07: Your argument is that notwithstanding the statutory status quo requirement, that when the trust notified you that it would not [00:15:19] Speaker 07: accept contributions on behalf of this group that you wanted contributions to be made for, and I refer to that as a subset. [00:15:32] Speaker 07: Then, because the union asked the employer to sign a subscription agreement to cover these employees, it thereby [00:15:48] Speaker 07: conceded that a subscription agreement must have existed prior to that time that gave the employer the right to cancel the contribution. [00:16:03] Speaker 00: That's part of the conduct, but by insisting that the employer sign a subscription agreement, it's asking the employer to abrogate 8D rights. [00:16:12] Speaker 00: The insistence upon signing a subscription agreement in order to resume contributions is part of the litany of conduct that occurred over a five-month period that would lead a reasonable person to conclude that, in fact, subscription agreements existed and or that the [00:16:30] Speaker 00: union and trust fund should be stopped from asserting that a subscription agreement is not in existence. [00:16:37] Speaker 00: They said do not send contributions. [00:16:39] Speaker 00: They will not accept contributions. [00:16:41] Speaker 07: On behalf of this group. [00:16:42] Speaker 07: I mean, you want to ignore that, but that's the key here, isn't it? [00:16:46] Speaker 07: And I guess I don't understand the, I thought the board's view was that the union's conduct [00:16:55] Speaker 07: related to the fact that the employer was refusing to make contributions. [00:16:59] Speaker 07: So it said, well, if you're saying you won't make them, then we've got to have another subscription agreement. [00:17:05] Speaker 07: Is that your argument? [00:17:07] Speaker 00: The union saying that they won't accept contributions without a subscription agreement compels the company to engage in conduct that's not required to engage in. [00:17:17] Speaker 07: It's not the union, counsel. [00:17:18] Speaker 00: Union and trust fund. [00:17:19] Speaker 07: You keep saying that. [00:17:20] Speaker 07: It's in your mind, all right? [00:17:23] Speaker 07: The union had no control over whether or not the trust accepted these contributions. [00:17:30] Speaker 07: That was the trust writing you, your client, on behalf of itself. [00:17:36] Speaker 00: But the union, as part of this, required an interim agreement to be signed, Your Honor. [00:17:44] Speaker 05: Okay. [00:17:45] Speaker 04: I'd like to address the three trusts other than the Oregon Trust. [00:17:52] Speaker 04: What is your understanding as to the nature of the remedy that the board has imposed? [00:18:05] Speaker 00: With respect to the Oregon Trust? [00:18:07] Speaker 04: No, the three trusts other than the Oregon Trust. [00:18:12] Speaker 00: The nature of the remedy is that the board found that there was a clear and unmistakable weight with respect to that. [00:18:20] Speaker 00: There was a subscription agreement. [00:18:23] Speaker 00: So to the extent there was any kind of liability, it would be consistent with what the subscription agreements said. [00:18:37] Speaker 04: it would be. [00:18:38] Speaker 04: So what does the board's order do with respect to those three trusts? [00:18:46] Speaker 00: It's a good question, Your Honor. [00:18:47] Speaker 00: I hadn't thought about that. [00:18:48] Speaker 00: It was not part and parcel of our argument. [00:18:50] Speaker 04: I mean, looking at the order, I read it as simply saying that the company must bargain with respect to medical benefits. [00:19:02] Speaker 00: Correct. [00:19:04] Speaker 00: That's correct. [00:19:04] Speaker 00: The company medical benefits. [00:19:05] Speaker 03: Well, there was an amendment upon the union's request. [00:19:08] Speaker 03: So the amendment would allow the union to continue whatever you're doing. [00:19:13] Speaker 07: I thought the finding was, look at the hearing officer's finding, and this is what the board adopted, was that as to this interim period, there had been this interim agreement, all right, but it only applied during that interim period, not as your client was arguing, also after the strike ended, so that [00:19:43] Speaker 07: the employer has to bargain for, with the union, as to contributions as part of this new collective bargaining agreement, if it's ever reached, until such time as impasse is reached. [00:20:04] Speaker 07: But that as to this interim period, the union had waived its right to contributions [00:20:13] Speaker 07: as to that period, and there would be no bargaining as to that. [00:20:17] Speaker 00: That's correct, Your Honor. [00:20:19] Speaker 07: All right, but you have to read those two together to understand, I think, what's going on. [00:20:25] Speaker 07: And you can tell me I'm wrong, but that's what I understood the board to be saying. [00:20:34] Speaker 04: You understand the board to be saying, with respect to these three trusts, other than the Oregon Trust, [00:20:43] Speaker 04: There's no imposition on the company by due date to replicate the three trusts, the contributions to the three trusts. [00:20:55] Speaker 04: It's simply, it's entirely open for bargaining between the company and the union. [00:21:04] Speaker 00: And I see my time is up. [00:21:05] Speaker 00: I would just like to respectfully request that final liability for or violation of ceasing the contributions to the Oregon Trust implementing the company medical or to remand the matter back to the board for consistent proceedings consistent with Manitoba guys from which it departed without a reasoned explanation or to at least provide an explanation. [00:21:28] Speaker 02: Thank you, Your Honor. [00:21:30] Speaker 02: We'll hear from Mr Lay. [00:21:44] Speaker 06: May it please the court, I'm Tom Leahy and I represent the Teamsters locals in this case. [00:21:48] Speaker 06: The Teamsters are respectfully requesting that this court grant their petition for review and reverse the portion of the board's decision where it found that Oak Harbor did not violate the act when it unilaterally ceased making contributions to the Retirees Welfare Trust, the Washington Teamsters Welfare Trust, and the Western Conference of Teamsters Pension Trusts. [00:22:08] Speaker 06: For today, we'll call those the three trusts. [00:22:10] Speaker 07: So does all this turn on whether the subscription agreement is A, either ministerial, or B, a contract of adhesion? [00:22:21] Speaker 06: Yes, and I'd also add whether or not it serves as a waiver. [00:22:24] Speaker 06: Yes, that's how I would say. [00:22:26] Speaker 06: I think that's the fundamental issues for this case, correct. [00:22:35] Speaker 06: So Oak Harbor's obligation to pay in the trust fund [00:22:38] Speaker 06: paying to the trust funds is based on the collective bargaining agreement it has with the teams for locals. [00:22:46] Speaker 06: All of the trust funds, all three of these trust funds require a subscription agreement or an EU. [00:22:51] Speaker 06: The EU applies the pension plan. [00:22:53] Speaker 06: It's the same as a subscription agreement, so I'll refer to them all as subscription agreements for purposes of argument today. [00:23:00] Speaker 06: The subscription agreement is not bargained, but it's signed by all three parties, the union, the trust, and the employer. [00:23:08] Speaker 06: After Oak Harbor gave notice that it intended to cancel the substitution agreement, it waited the five days, and then Unilaterally ceased making contributions into the trust funds. [00:23:22] Speaker 06: The union filed an unfair labor practice saying, look, that's a unilaterally change. [00:23:26] Speaker 06: We're not at impasse yet, and you stopped making contributions into the trust funds. [00:23:30] Speaker 07: So let me understand this argument. [00:23:33] Speaker 07: I understand when you're saying that the subscription agreements are not bargained, but the union signed the agreement, doesn't it? [00:23:44] Speaker 07: And therefore, by signing it, it's bound to its terms, isn't it? [00:23:51] Speaker 06: It's bound to its terms, but it's our position that that's a contractual agreement. [00:23:56] Speaker 06: and it's signed by three parties. [00:23:58] Speaker 06: It's different from an agreement just between the union and the employer. [00:24:02] Speaker 06: It's a three-party agreement, the union, the employer, and the trust. [00:24:06] Speaker 07: You say that the power under the subscription agreement to cancel [00:24:12] Speaker 07: merely relieves the employer of its obligation to make contributions to the trust, but it does not relieve the employer of its statutory duty to maintain the status quo? [00:24:27] Speaker 06: That's correct. [00:24:28] Speaker 06: In this case, the status quo would be to continue to make contributions. [00:24:34] Speaker 07: And so the board rejected the argument that this was merely a ministerial agreement. [00:24:42] Speaker 07: and rejected the argument that this was a contract of adhesion. [00:24:49] Speaker 06: Yes, that's correct. [00:24:52] Speaker 07: And I guess, why was it arbitrary and capricious in doing that? [00:24:58] Speaker 06: No. [00:24:59] Speaker 06: The reason why, well first of all, it was arbitrary and capricious because I think the evidence clearly shows that the substitution agreements are clearly ministerial documents. [00:25:08] Speaker 06: The trust wants them for two reasons. [00:25:10] Speaker 06: And again, these are required by the trust. [00:25:12] Speaker 06: The unions don't ask for them. [00:25:13] Speaker 06: The employers don't ask for them. [00:25:15] Speaker 06: These aren't changed or bargained. [00:25:18] Speaker 06: These are documents that the trust wants. [00:25:19] Speaker 04: The unions pose no objection, right? [00:25:23] Speaker 06: Yes, correct. [00:25:24] Speaker 04: They don't have a right to pose an objection. [00:25:29] Speaker 06: I suppose it didn't. [00:25:31] Speaker 04: Yeah, correct. [00:25:33] Speaker 06: The union does not have to sign. [00:25:36] Speaker 06: But the union is understanding these are just ministerial documents, contractual agreements. [00:25:40] Speaker 07: So let me be clear. [00:25:41] Speaker 07: If the union doesn't sign it, what happens? [00:25:45] Speaker 07: In other words, the collective bargaining agreement itself says that the employer shall contribute, hypothetically, $100 a month for each employee. [00:25:58] Speaker 07: then the employer has to find, under the Taft-Hartley Act, an entity that can legally receive this money. [00:26:08] Speaker 07: So that money goes to a trust, and the trust says, we will not accept this money unless we have an agreement. [00:26:21] Speaker 07: And the agreement is that we accept this money from the employer [00:26:27] Speaker 07: for the benefit of the union employees? [00:26:34] Speaker 06: Yes. [00:26:35] Speaker 07: So you're saying the union doesn't even have to be a party to that agreement? [00:26:39] Speaker 06: No. [00:26:40] Speaker 06: The subscription agreement requires a union signature. [00:26:43] Speaker 06: And the trust requires the signatures from both the employer and the union, because number one, under section 302 of the National Labor Relations Act, contributions to a trust fund have to be based on a written document. [00:26:53] Speaker 06: So part of what the subscription agreement does, it tells the trust, [00:26:57] Speaker 06: Hey, look, the union and the employer, both certified, there's a contract that these contributions are based on. [00:27:03] Speaker 06: There's a written document. [00:27:04] Speaker 06: So that keeps everybody out of trouble. [00:27:06] Speaker 06: So that's the one thing the situation does. [00:27:08] Speaker 07: No, but that's in the collective bargaining agreement itself. [00:27:10] Speaker 07: $100 a month per employee. [00:27:13] Speaker 06: Yes, that's in fact a bargaining agreement, but the subscription agreement confirms or certifies that the contributions are based on a written document, because they both have to attest. [00:27:24] Speaker 07: So I'm just trying to understand. [00:27:25] Speaker 07: I mean, the union couldn't object. [00:27:28] Speaker 07: If it objects, then the employer can't make the contribution. [00:27:31] Speaker 06: That's right. [00:27:31] Speaker 06: The subscription agreement requires both signatures. [00:27:33] Speaker 06: I mean, and if both parties don't sign, the trust can't accept the contributions. [00:27:37] Speaker 06: Those are the trust rules. [00:27:38] Speaker 07: And those are the trust rules under the Taft-Hartley Act. [00:27:42] Speaker 06: Those are the trust rules on their own internal trust. [00:27:48] Speaker 07: So it's like I open an account with a bank, and I have to sign a lot of documents, basically. [00:27:53] Speaker 06: Yes, that's an analogy to make. [00:27:56] Speaker 06: It's just to sign up to open a checking account. [00:27:58] Speaker 06: You put your name, your address. [00:28:00] Speaker 03: This seems a little bit more than that. [00:28:07] Speaker 03: The CBA plainly contemplates that there's going to be a written agreement of some kind with the trust, right? [00:28:17] Speaker 03: Otherwise, there couldn't be a trust. [00:28:20] Speaker 07: It doesn't say anything about that. [00:28:21] Speaker 03: Well, it says, employees in the local union shall be bound by the provisions of the agreement and declaration of the afore-referenced trust. [00:28:29] Speaker 03: So you knew that you had to know that there was going to be a subscription agreement of some kind, right? [00:28:36] Speaker 03: Oh, yes. [00:28:37] Speaker 06: No, both parties fully know and expect that there's going to be a subscription. [00:28:41] Speaker 03: When you bargain in a CBA to take care of employees' health via a Taft-Hartley trust, you know you're going to have to sign something, right? [00:28:53] Speaker 03: Correct. [00:28:54] Speaker 03: And you know, according to you, what that something is. [00:28:58] Speaker 03: Right? [00:28:59] Speaker 03: Correct. [00:29:00] Speaker 03: And you say you couldn't change it. [00:29:02] Speaker 03: That's the adhesion argument. [00:29:04] Speaker 03: Correct. [00:29:04] Speaker 03: Right. [00:29:04] Speaker 03: But you didn't have to have a trust. [00:29:06] Speaker 03: That is, you could have a company health plan. [00:29:09] Speaker 03: You could have bargained for something else. [00:29:11] Speaker 03: If you didn't like the cancellation provision of the trust, there are other ways to get help for your employees, right? [00:29:20] Speaker 03: For your union members, I'm sorry. [00:29:23] Speaker 03: Yes, I mean, if your point is, look, we have other options, that is correct. [00:29:26] Speaker 07: But I thought the Taft-Hartley Act specifically limited those options. [00:29:33] Speaker 03: No, no. [00:29:33] Speaker 03: Just to be clear, the Taft-Hartley Act says that you can't take these contributions in a trust without a written agreement and all the other stuff, right? [00:29:43] Speaker 03: But it doesn't specify this kind of written agreement. [00:29:46] Speaker 03: That's correct. [00:29:46] Speaker 03: Yeah, there's no statutory. [00:29:48] Speaker 03: And the Taft-Hartley Act does not prevent [00:29:53] Speaker 03: a union from agreeing to accompany health plan. [00:29:57] Speaker 03: Correct. [00:29:58] Speaker 06: And I want to be clear, there's no, I'm not aware of the specific cancellation language in this subscription agreement. [00:30:05] Speaker 06: That's not cut and paste from a statute. [00:30:07] Speaker 03: That's not part of the statute at all. [00:30:09] Speaker 03: The statute doesn't say anything about cancellation. [00:30:11] Speaker 03: Yeah, yeah, I understand. [00:30:13] Speaker 03: Now, are you saying, I'll take it there's no evidence in the record, are you saying every subscription agreement of every [00:30:19] Speaker 03: have hardly trust has this cancellation language in it. [00:30:24] Speaker 06: You know, I, I, I would assume so, but I don't, I can't, I don't know. [00:30:29] Speaker 06: I haven't, you know, I can't say I've looked at every, every, you know, sufficient agreement. [00:30:32] Speaker 06: I can say that. [00:30:33] Speaker 03: And can you say that you're not allowed to, um, if the, if the union and the employer want to take the cancellation language out, you can't say one way or the other, whether the trust would have allowed, right? [00:30:46] Speaker 06: Yeah, I don't know. [00:30:48] Speaker 06: I would assume this is what the trust require. [00:30:51] Speaker 07: But let me just be clear. [00:30:52] Speaker 07: I thought the board found that as to the Oregon trust, there was no requirement as to a subscription agreement. [00:30:59] Speaker 07: And you're saying what? [00:31:00] Speaker 07: That's just wrong as a matter of practice? [00:31:04] Speaker 06: There's two things. [00:31:06] Speaker 06: Since the Oregon Trust was first organized or started, there was a Supreme Court case, 1988 case, the advanced lightweight case that says, look, in order for a trust fund to get into federal court and sue for delinquent contributions, [00:31:22] Speaker 06: on an expired collective bargaining agreement, you need a contract. [00:31:26] Speaker 06: Otherwise, you can't sue an employer that's delinquent on contributions. [00:31:31] Speaker 06: You can't get into federal court because there's no contract. [00:31:34] Speaker 06: So that subscription agreement now, the trusts want them because that serves as the contract [00:31:38] Speaker 06: That allows the trust funds to get into federal court and sue for those delinquent contributions. [00:31:44] Speaker 06: So that's why it's a ministerial document. [00:31:46] Speaker 06: It's just, for purposes of the trust, to get into federal court, as well as to certify, it's the best practices to certify that these contributions are based on a written document. [00:31:57] Speaker 03: But there's no best practice about having, in the way you described it, and no particular interest of the trust of allowing cancellation in the way in which that opening language provides in the subscription agreement. [00:32:09] Speaker 03: It's not like a bank having an adhesive contract, by the way, I don't know whether these are adhesive or not, which says the bank has all the rights, you have no rights, you have to agree to this, you have to agree to that, you have to have an arbitration agreement, etc. [00:32:24] Speaker 03: This particular cancellation provision doesn't sound like it's to the benefit of the trust. [00:32:30] Speaker 03: It allows the union and the employer to cancel. [00:32:32] Speaker 06: Well, you know, I think it's there because if the parties were to bargain an impasse, and they did bargain an impasse, and the employer implemented and said, look, we're no longer going to give contributions to this trust fund, it allows the employer a way to do that, to get out of that. [00:32:47] Speaker 03: But that's not to the benefit of the trust. [00:32:49] Speaker 03: That may be to the benefit of the employer. [00:32:51] Speaker 03: But normally, when you talk about a contract of adhesion, it's the party who you claim is forcing you to [00:32:56] Speaker 03: File the contract of adhesion and that's here in this case. [00:33:00] Speaker 03: The trust is not the employer. [00:33:02] Speaker 03: It's not the union well The subscription agreement is the benefit of the trust because allows them to get into the benefit of the trust but not for the benefit of the union Right. [00:33:12] Speaker 03: The trust is a separate independent entity. [00:33:14] Speaker 02: They're correct. [00:33:15] Speaker 02: That's correct. [00:33:15] Speaker 03: That's correct with respect to the cancellations that the board said were valid and [00:33:26] Speaker 03: Again, I'd like you to assume, like I asked the opposing counsel, that the board was correct. [00:33:31] Speaker 03: What do you understand the status quo to be? [00:33:40] Speaker 03: If the cancellations were valid, what's the status quo for those circumstances? [00:33:49] Speaker 03: I'm not sure if I understand the question correctly. [00:33:51] Speaker 03: Well, what is it that they [00:33:53] Speaker 03: should have continued to do that they didn't by instead implementing a company plan. [00:34:03] Speaker 03: What was the status quo? [00:34:04] Speaker 03: Okay, are you referring to the Oregon Trust? [00:34:06] Speaker 03: No, to the three that the court said, that the board said were valid. [00:34:10] Speaker 03: And I ask you to assume for purposes of this discussion, we won't hold it against you, that they were valid. [00:34:16] Speaker 06: Our position, the status quo was when in the bargaining agreement, and that was to continue the contributions and... But even, how can it be the status quo if the board said they'd lawfully canceled them? [00:34:33] Speaker 03: It's not just that the contract ran out, it's that it included a provision in which, according to the board, the union waived its right to bargain about thereafter. [00:34:44] Speaker 03: Now, if that's correct, and I ask you to assume it, then what is the status quo with respect to those, the employees who are under, who were under those now canceled plans? [00:35:01] Speaker 06: Again, I guess I'd say the status quo would still be the collective bargaining agreement. [00:35:04] Speaker 06: If what you're saying is that they had a right to cancel those, then the status quo. [00:35:08] Speaker 03: Yeah, I'd say I'd ask you for, assume that the CBA itself said the minute that this runs out, the employer has an absolute complete right to stop contributions and re-waive any complaint we might have. [00:35:27] Speaker 03: Assume we got all that language in there. [00:35:28] Speaker 03: That's the effect of what the MLB said. [00:35:31] Speaker 03: Now what happens? [00:35:32] Speaker 06: Well, I think at that point, the bargaining would almost have to start from scratch, assuming, you know. [00:35:38] Speaker 04: And is that what the board order here effectively says, bargaining at this point can start? [00:35:45] Speaker 06: Well, I guess. [00:35:46] Speaker 06: That seems to be what it orders. [00:35:50] Speaker 06: Yeah, with the Oregon trust. [00:35:53] Speaker 04: No, no, no. [00:35:55] Speaker 06: Okay, I'm sorry, I'm sorry. [00:35:57] Speaker 06: Yeah, you essentially, yes, assuming those waivers are valid, you have to just start from, okay, there's, you can't contribute to these trusts anymore, the employer and union would have to get together and say, okay, now what do we do? [00:36:08] Speaker 06: I mean, you know. [00:36:10] Speaker 03: And what happens to the employees in the interim? [00:36:14] Speaker 03: That would be subject to bargaining. [00:36:15] Speaker 03: You'd have to figure that out. [00:36:16] Speaker 03: Right, but during the bargaining, [00:36:19] Speaker 03: In the moments before they resolve anything, what happens to the employees' health benefits? [00:36:25] Speaker 03: They have none? [00:36:27] Speaker 06: Again, I think the employer and the union can make an interim agreement and say, look, while we figure this out, let's just put them under the company health plan while we figure this all out. [00:36:35] Speaker 03: But the union didn't want to do that. [00:36:38] Speaker 03: It did it. [00:36:39] Speaker 03: Right. [00:36:40] Speaker 03: They didn't want to do an interim in a company health planner, did they? [00:36:44] Speaker 03: During the period of the strike, there was an interim. [00:36:46] Speaker 03: No, no, afterwards. [00:36:47] Speaker 03: After the strike's over, everybody goes back to work. [00:36:50] Speaker 03: We're no longer talking about crossovers. [00:36:54] Speaker 03: We're just talking about people. [00:36:55] Speaker 03: Everybody's back to work. [00:36:57] Speaker 03: During the period before there is a new agreement, what happens to the employees' health, care, benefits? [00:37:07] Speaker 06: Like I say, I think you'd have to be kind of in a quick interim agreement to just say, look, while we figure this out. [00:37:12] Speaker 06: But until that, they get nothing? [00:37:16] Speaker 06: Well, yeah, because they can't be covered in the trust fund. [00:37:20] Speaker 06: I mean, the trust fund benefits may carry over for a month. [00:37:24] Speaker 06: There may be a lag month. [00:37:26] Speaker 04: So it's a vacuum, and both sides have to do the bargain as to how the vacuum is done. [00:37:31] Speaker 06: That's right. [00:37:32] Speaker 06: And you could do short-term and long-term solutions, but it'd be subject to collective bargaining. [00:37:36] Speaker 06: A couple other quick points I'd like to make, and I know I'm out of time here. [00:37:40] Speaker 06: As far as Cawthorn, which is a decision that the board relied on to establish that there was a waiver. [00:37:48] Speaker 06: It's our position that our case is distinguished well from Cawthorn, and that was misapplied. [00:37:53] Speaker 06: Cawthorn has very specific language. [00:37:56] Speaker 06: It says in the trust agreement that the employer signed onto. [00:38:01] Speaker 06: This was not a subscription agreement. [00:38:02] Speaker 06: This was probably before subscription agreements were in place. [00:38:05] Speaker 06: The trust agreement, there's very specific language. [00:38:07] Speaker 06: It says, at the expiration of the contract, [00:38:11] Speaker 06: the employer's obligation will terminate. [00:38:14] Speaker 06: It's not may, it says it shall terminate. [00:38:17] Speaker 06: So it's over and it's done. [00:38:19] Speaker 06: So the parties know when the employer signed that trust agreement in Cawthorn that look, when this contracts up, [00:38:26] Speaker 06: Your obligation is over, it's done. [00:38:29] Speaker 06: Whereas in our case, the cancellation language, the parties have to take an affirmative action. [00:38:37] Speaker 06: It doesn't automatically expire. [00:38:40] Speaker 04: An employer or a union has to take an affirmative action. [00:38:46] Speaker 04: So why does that make the waiver less clear? [00:38:47] Speaker 06: Because in our case, you don't know if it's going to happen. [00:38:50] Speaker 06: In fact, it's a rare for cancellation notices. [00:38:52] Speaker 04: Uncertainty is different from vagueness. [00:38:56] Speaker 04: Somebody has a choice. [00:38:57] Speaker 04: It's clear who has the choice. [00:39:00] Speaker 04: When the person makes the choice in the prescribed way, the choice has been made. [00:39:06] Speaker 06: Correct. [00:39:07] Speaker 06: And in our case, [00:39:09] Speaker 06: For example, in our case, our contract expired in 2007, but the employer didn't cancel right away. [00:39:14] Speaker 06: They continue to contribute well into 2008. [00:39:18] Speaker 06: So therefore, because the parties don't- They didn't exercise the option. [00:39:22] Speaker 06: That's correct. [00:39:22] Speaker 06: They didn't exercise the option. [00:39:24] Speaker 06: So therefore, in Cawthorn, the parties know what's coming. [00:39:27] Speaker 06: They can deal with it, and they can bargain if they feel that's necessary, because they know what's happening. [00:39:32] Speaker 06: In our case, we don't know if anybody's going to cancel. [00:39:35] Speaker 06: And so that's why, if somebody makes the decision to cancel, that's why bargaining is required. [00:39:40] Speaker 04: The union can bargain to try to talk the company out of exercising its right under the agreement, right? [00:39:53] Speaker 06: Well, exactly. [00:39:54] Speaker 04: Why is that worse than having it automatic? [00:39:58] Speaker 06: I guess in our case, [00:40:01] Speaker 06: If the employer says, look, we want you out of the pension plan. [00:40:03] Speaker 06: We want you out of the Western Conference pension plan. [00:40:06] Speaker 06: We're going to bargain about this, and we're going to try to get the impasse to get you out of the pension plan. [00:40:11] Speaker 06: That gives the union the opportunity to bargain, to bargain and talk about that, as opposed to the employer unilaterally just saying, boom, we're out of this. [00:40:20] Speaker 06: And so that's why the language in Cawthorn is different than our language. [00:40:24] Speaker 06: I would also argue that the NLRB improperly excluded extrinsic evidence in our case. [00:40:31] Speaker 06: The extrinsic evidence shows that these subscription agreements are ministerial agreements that serve the two purposes I talked about earlier of keeping people in compliance with section 302 as well as giving the trust access to the federal courts. [00:40:49] Speaker 06: In its briefing, Oak Harbor talked about how these subscription agreements had been bargained and modified in the past. [00:40:57] Speaker 06: The unions were never able to fully rebut that testimony because the subscription agreements from the past were excluded from evidence, and we weren't given a full right to cross-examine the labor relations person for Oak Harbor to ask him about have these subscription agreements ever been changed. [00:41:13] Speaker 06: And it's our position that if we would have been given that opportunity, [00:41:16] Speaker 06: It would have shown that these subscription agreements or ministerial documents haven't changed, and people just sign on them at the request of trust. [00:41:26] Speaker 03: You weren't proffering evidence that they couldn't be changed. [00:41:30] Speaker 03: You weren't proffering evidence that it was not possible to bargain, only that in the past there hadn't been a bargain. [00:41:37] Speaker 03: Is that right? [00:41:38] Speaker 06: That's correct. [00:41:39] Speaker 06: Yeah. [00:41:39] Speaker 06: As far as our position was, the trust wouldn't change them. [00:41:46] Speaker 06: They're not a, it's not a collectively bargained agreement, the subscriptionary agreement. [00:41:50] Speaker 06: It's dictated by the trust funds. [00:41:53] Speaker 03: Okay, further questions? [00:41:56] Speaker 03: Okay, thank you very much. [00:41:57] Speaker 03: We'll hear from the NLRB. [00:42:13] Speaker 01: May it please the Court, Jarrett Cantor, on behalf of the National Labor Relations Court. [00:42:17] Speaker 01: The Court has heard a lot of argument this morning. [00:42:19] Speaker 03: Before you get started, since we're all focusing on at least one question, I think we'd all like to get answered. [00:42:26] Speaker 03: What do you understand to be the status quo for health care benefits following the three lawful cancellations? [00:42:34] Speaker 01: Yes, Your Honor. [00:42:35] Speaker 01: And I want to point this court to the board's 2014 decision and order, and specifically the remedy section there, which I think... What page are you on? [00:42:49] Speaker 01: Your Honor, that would be its... It's JA67, is that right? [00:42:53] Speaker 03: Yes, Your Honor. [00:42:55] Speaker 03: And that's the language I was reading before. [00:42:56] Speaker 03: That the respondent shall be ordered upon the union's request to restore the status quo by ceasing to give effect to the unilaterally implemented company health care plan. [00:43:06] Speaker 03: Is that right? [00:43:06] Speaker 01: That's correct, Your Honor. [00:43:07] Speaker 03: It does not require continuing contributions to the trust. [00:43:12] Speaker 03: Is that right? [00:43:14] Speaker 01: To the Oregon trust, yes. [00:43:16] Speaker 01: To the cancel trusts, no. [00:43:17] Speaker 01: Absolutely not. [00:43:19] Speaker 03: I just want to be sure I understand. [00:43:20] Speaker 03: In your brief, wherever you say at page 18 to 19, when the employees return to work, the company unilaterally placed them into its company health care plan, rather than returning them to the prior union plan as required by law, that is a reference only to the Oregon situation and not to the others? [00:43:41] Speaker 01: It's definitely to the Oregon and as to the other health care that of course presupposes then there is the, because the duty is to return to the status quo which was pre-strike. [00:43:52] Speaker 01: The cancellations then happen after the strike. [00:43:55] Speaker 01: So when you look at the board's remedy here, it's yes there's the unfair labor practice for the unilateral implementation of its health care plan. [00:44:04] Speaker 01: But as to Oregon, it has to rescind that. [00:44:07] Speaker 01: But as to the other people receiving health care through any of the other trusts, and the board's remedy makes this clear, the company then can still, it can't be, on the request of the union, it then dislodges that. [00:44:21] Speaker 01: But it does not have to. [00:44:23] Speaker 03: That's not, yeah, it says restore this status quo by ceasing to give effect to its unilateral implemented company health care plan. [00:44:34] Speaker 03: It doesn't say anything with respect to the contributions. [00:44:38] Speaker 03: With respect to the Oregon one, which is the next few sentences, it says with respect to though that trust, it has to continue to make contributions to that fund. [00:44:47] Speaker 03: Correct. [00:44:48] Speaker 03: And so the status quo, according to this order, seems to be for Oregon going back to making contributions to the trust. [00:44:56] Speaker 03: Correct. [00:44:56] Speaker 03: And for the others, nothing. [00:44:59] Speaker 01: Except the duty to bargain. [00:45:00] Speaker 01: Except the duty to bargain. [00:45:01] Speaker 01: Except the duty to bargain. [00:45:03] Speaker 01: And again, the others, one of them is a health care one. [00:45:07] Speaker 01: The other ones are pension. [00:45:08] Speaker 01: And I'm only worried about the health care. [00:45:09] Speaker 03: For right now, I'm trying to hold this. [00:45:10] Speaker 03: Just the health care. [00:45:12] Speaker 03: Please stay with me on this, OK? [00:45:13] Speaker 03: With respect to health care, other than Oregon, [00:45:17] Speaker 03: Your statement, rather than returning them to the prior union plan as required by law, there is no prior union plan required by law where they lawfully canceled, is that correct? [00:45:30] Speaker 03: Correct. [00:45:31] Speaker 03: So you are only referring then here to the Oregon plan? [00:45:36] Speaker 03: To the Oregon, yes. [00:45:37] Speaker 03: And then on page 49 where you say, [00:45:41] Speaker 03: In addition, the answer to the company's posed question of what benefits the returning strikers would have is simply stated, the benefits set forth in the expired bargaining agreement, including health care benefits through the trust funds, that is a reference only to Oregon, is it? [00:46:01] Speaker 03: Yes, Your Honor. [00:46:02] Speaker 03: So I don't understand how that's responsive. [00:46:05] Speaker 03: The company's argument is, what are we going to do about the [00:46:11] Speaker 03: and all of our employees in all these cases where they don't have any health care plan at all, at least as to where we've lawfully canceled. [00:46:20] Speaker 03: What are the benefits of the returning strikers in those cases? [00:46:26] Speaker 01: Well, that would have then been the bargaining. [00:46:29] Speaker 01: And certainly it could have gone to impasse. [00:46:33] Speaker 03: It could have... But until impasse, the employees are just out of luck and have no health care at all? [00:46:40] Speaker 01: Well, I think what the board's remedy also recognizes is that the company dislodges its company health care plan, and of course we are many years after the fact now, upon the request of the union and whether all of that has been mooted. [00:46:56] Speaker 01: come out in compliance, assuming there's a dispute at that point. [00:47:00] Speaker 01: But yes, assuming that this was essentially, the board was actively involved in this case as it was going on day by day, that would be the conclusion there. [00:47:10] Speaker 04: And again, there are- I'm sorry, I'm sorry. [00:47:12] Speaker 04: That got too complicated. [00:47:13] Speaker 04: That would be the conclusion there. [00:47:15] Speaker 01: That is what- If the board had been presiding over this at the moment the strikers are coming back, [00:47:22] Speaker 01: the board would have said the organ trust has to be re-instituted the contributions have to continue the pension trusts you have lawfully canceled and the health care trust and the health care trust lawfully canceled the unfair labor practice is the unilateral implementation of its own so the employer says i've got all these employees coming back to work we still union [00:47:53] Speaker 07: and the employer have not yet reached agreement on a new bargaining, collective bargaining agreement. [00:48:01] Speaker 07: The employer says, I want to have some provision for the employees until we do reach agreement, if we ever do. [00:48:11] Speaker 07: So it says, gonna cover them under the company health plan. [00:48:15] Speaker 07: And let's assume for the moment that's not as generous as what was under the status quo of the old collective bargaining agreement. [00:48:25] Speaker 07: So if I'm an employee, I don't know, let's say 75% of my healthcare may be covered under the employees, under the employers. [00:48:38] Speaker 07: plan, but 100% is what the union wants and what it had under the old collective bargaining system. [00:48:46] Speaker 07: So from the employee's perspective, it's either I get nothing or I get 75% and maybe [00:48:55] Speaker 07: If the parties successfully bargain, there may be a provision in that new agreement for retroactive payments, giving me not only 75% but another 25%. [00:49:09] Speaker 07: Is that the way the real world happens here? [00:49:13] Speaker 01: Your Honor, having never been involved in the real world. [00:49:18] Speaker 01: No, I have certainly, as opposed to my distinguished brothers at the bar, I have never been in that kind of position in the give and take. [00:49:26] Speaker 07: Well, you're representing the board and you're probably more familiar with the record than I am. [00:49:30] Speaker 07: And the concern I have here is trying to understand what the board is ordering. [00:49:37] Speaker 07: I mean, in the sense that is the board's finding that there was a proper cancellation [00:49:44] Speaker 07: of contributions as to the three trusts. [00:49:47] Speaker 07: Yes. [00:49:48] Speaker 07: If that's the only issue, then the only question is, was it arbitrary and capricious for the board to refuse to allow the union to put on this other evidence to show that these subscription agreements are never bargained for? [00:50:05] Speaker 07: They're just something demanded by the trust, and the union has no option, basically, except to sign them. [00:50:13] Speaker 07: And that's over. [00:50:15] Speaker 07: Then as to the unilateral action, it's the same thing. [00:50:21] Speaker 07: And the problem is just sort of trying to get a real world sense of what's happening out here, as opposed to we're sitting in a room talking about this legal, theoretical, [00:50:37] Speaker 07: situation, whereas I thought some of the records suggested the employer was trying to figure out, I need to provide some coverage in the interim. [00:50:47] Speaker 01: They certainly, that was the claim that they were making, that they wanted to provide, and certainly the company plan was what they had wanted from the beginning of the reopening of bargaining. [00:50:56] Speaker 01: That was the ultimate goal, was to get employees out of the expensive trusts and into the cheaper company health care plan. [00:51:05] Speaker 01: through the strike and then through the input. [00:51:07] Speaker 01: I mean, they got what they wanted in that sense. [00:51:10] Speaker 01: As to the excluded... They being the company? [00:51:20] Speaker 01: Yeah. [00:51:22] Speaker 07: So the union says, but we have this statutory right, all right, to the status quo, not to the company's health plan. [00:51:31] Speaker 07: And the response is, but you waive that, [00:51:35] Speaker 07: in this subscription agreement when the employer lawfully canceled contributions. [00:51:43] Speaker 07: So the union says this will be a disaster to collective bargaining for all the reasons that I think our questions are suggesting in terms of trying to understand what this system is and your response is no it won't because these trusts don't have to have subscription agreements with these provisions in them. [00:52:03] Speaker 01: I don't know if the board has said the trusts don't have to have them in them. [00:52:09] Speaker 07: That's what I've read your brief to say. [00:52:11] Speaker 07: It's not a disaster because in fact you don't need to have subscriptions, agreements with this language in it. [00:52:17] Speaker 01: uh... i would i will look at my three and i'm sorry but anyway that's what i understood that might be the companies i believe the board's brief i believe on this my recollections of what we said was simply that this is the board law for more than thirty years now this jurisprudence hawthorne line of jurisprudence and then and that [00:52:40] Speaker 01: It, as far as I'm aware, has not caused the calamity and the end of bargaining and the breakdown. [00:52:45] Speaker 07: OK, so the union comes back and says, Cawthorn trucking had this specific statement in it that said, everything ends when the collective bargaining agreement ends. [00:52:59] Speaker 07: That this is the first time that precedent has ever been applied to a situation here, as here, where it interferes with the status quo [00:53:10] Speaker 07: that's preserved under the statute as to bargaining. [00:53:14] Speaker 07: So isn't this a new application of Cawthorn trucking? [00:53:18] Speaker 01: I don't think it's a new application, Your Honor. [00:53:20] Speaker 01: Certainly it is the first case since Cawthorn that I'm aware of where there was specific enough language in the operative document, whether it's an essay in EU, other trust documents, or [00:53:35] Speaker 07: But do you see the difference? [00:53:36] Speaker 07: I mean, and I just want to understand the board's position on this. [00:53:39] Speaker 07: It's one thing when the collective bargaining agreement itself says that the duty to make contributions is over when the agreement expires. [00:53:50] Speaker 07: It's another thing [00:53:52] Speaker 07: to have a separate subscription agreement, which at least the union is arguing, just takes the employer off the hook vis-a-vis the trust as to making contributions. [00:54:04] Speaker 01: Your Honor, the agreement in Cawthorn was a pension, was an EU. [00:54:07] Speaker 07: Yes. [00:54:08] Speaker 01: It was, again, not in the CBA. [00:54:10] Speaker 01: So it is similar to here. [00:54:11] Speaker 01: It was one of these agreements. [00:54:13] Speaker 07: So what's the difference between an EU and an SA? [00:54:15] Speaker 01: My understanding is that EUs are used by pensions and subscription agreements are used by health care trusts. [00:54:23] Speaker 07: But they're all three-party agreements. [00:54:26] Speaker 01: The ones in the record here are [00:54:31] Speaker 01: There are signatures from all three parties on them, correct. [00:54:33] Speaker 01: The signature line from the trust says approved or accepted. [00:54:38] Speaker 01: The language varies there, but they all have been signed off. [00:54:42] Speaker 01: And the point that I was gonna make when I first got up, and Judge Rogers, you had asked some very specific questions, and I wanna make sure that the answers are very clear, and I'm going now to the estoppel theory. [00:54:58] Speaker 01: preliminarily one of things i i really want to point out his really kind of struck me preparing for argument is so the company is asking the court to impose waiver and this is with regards to the the oregon trust the missing essay [00:55:13] Speaker 01: The importance and what really struck me in preparing for argument is if the court were to grant that estoppel, the problem still arises that this is not a case where we have an example of what that essay would have been, what the subscription agreement would have been, what its language was, and the party simply couldn't find the signed one. [00:55:33] Speaker 01: But for the court to go along with the company's estoppel, it would be essentially assuming then that the language in this agreement that no one has and that the trust says it doesn't require actually would have satisfied the clear and unmistakable test. [00:55:50] Speaker 01: And I think that's something that really struck me in preparing for arguments, that the court would have to assume that, yes, it existed. [00:55:59] Speaker 01: and that but that for to grant a sample it would have to assume that the language in there would satisfy and i think that's really what makes this case you know the the company keeps talking about manitowoc ice and there the union was a stop where over the course of many years it never protested or filed charges over that employers numerous unilateral changes to profit-sharing plans [00:56:24] Speaker 01: And during bargaining for a new CBA, it raised but then dropped the challenge to that position. [00:56:33] Speaker 01: And here, going back to the point I just made, the problem that I really see with the stopple is we don't actually know what this alleged thing would say. [00:56:45] Speaker 01: And to Judge Rogers' earlier questions, [00:56:50] Speaker 01: When the company asked, will you take the trusts, will you take contributions for crossovers, the three trusts said, no, we cannot because we need an SA or we need an EU. [00:57:04] Speaker 01: The letter from the Oregon Trust really stands out because it doesn't say that. [00:57:08] Speaker 01: It doesn't say it needs an SA or an EU. [00:57:10] Speaker 01: It just says, we cannot accept and then [00:57:14] Speaker 01: the company's obviously look to the company's letter what it was asking could they accept on behalf of cross over and as the testimony makes clear the organ trust didn't accept because of selectivity rules not because of an essay for you and i also want [00:57:33] Speaker 01: to point out that afterwards there's talk about the interim agreement and then the company being told you need to sign the interim agreement and SAS or EUs for all of the trusts. [00:57:42] Speaker 01: When you look at that communication from the union, which had emails from the trust or the trust administrators attached, there's nothing there about signing an SA or an EU for the Oregon trust. [00:57:56] Speaker 01: And I believe that had been explained to Judge Rogers and the board respectfully [00:58:02] Speaker 01: believes that the evidence is as I just described it, not the other way around. [00:58:06] Speaker 01: And I would refer to Joint Appendix 972 to 975 makes that clear. [00:58:25] Speaker 01: I'm see I'm over my time if the panel has no further questions. [00:58:29] Speaker 03: I just want to be clear again on what could have been done after the return to work with respect to the health care benefits. [00:58:39] Speaker 03: So obviously one thing that could have been done is just continue to negotiate. [00:58:44] Speaker 03: The employer wanted to go on the company plan. [00:58:48] Speaker 03: What did the union want to do in the interim until they reached the CBA? [00:58:53] Speaker 01: The union, based on its view that the cancellations, that there was no cancellation, the union wanted back the pensions and back the healthcare. [00:59:02] Speaker 01: And did they have a interim proposal until they reached a final agreement or not? [00:59:08] Speaker 01: The record's not clear with regards to overall bargaining during the discussions between Payne and whoever the union's representative whose name was escaping me at the time. [00:59:19] Speaker 07: Bow. [00:59:22] Speaker 01: Okay. [00:59:25] Speaker 01: My recollection without looking back at the testimony of what they said they were talking about was that they were going they were disputing what the status quo was with regards to health care and the company's proposal was [00:59:38] Speaker 01: the status quo, what it believed was the status quo, stemming from the interim, which is no pensions and its healthcare plan, and then it changed its position, and I believe it then said, still our healthcare plan, but back to the union's pensions. [00:59:54] Speaker 01: Again, the company's goal being throughout all this to get out of the union healthcare plans. [01:00:00] Speaker 01: It seems to have contemplated maybe compromising its position and going back into the union pensions, [01:00:06] Speaker 01: And that's where then things left off when then the company's negotiator filled the union, my authorization's been revoked to talk to you anymore, overall negotiations are ongoing. [01:00:19] Speaker 03: Just before that, had the union offer, asked for an interim contributions to the healthcare plan of the trust or no? [01:00:32] Speaker 01: So during the period where they're trying to figure out what should happen to the strikers, did the union ask for contributions to, your honor, ask the pensions or the healthcare? [01:00:44] Speaker 01: I'm only interested in healthcare. [01:00:48] Speaker 03: So on 13 of your brief it says, this is a pain to Hobart, O'Carver would continue the following agreed upon status quo for returning strikers, which is as follows. [01:00:59] Speaker 03: will cover the returning strikers under its company plans, pending a different agreement with the union on health and welfare. [01:01:08] Speaker 03: That was the employer's position. [01:01:13] Speaker 03: Yes. [01:01:14] Speaker 03: And what was the union's position? [01:01:18] Speaker 01: So the union's position on the status quo was that it was health care and pensions through the trusts, based on the union's position that [01:01:28] Speaker 01: that that was the staff's foe, and obviously it continues to believe that there were, the cancellations were all on law. [01:01:37] Speaker 01: If there are no further questions, the board rests on its brief and asks for its decision to be enforced. [01:01:46] Speaker 01: Is there any time remaining? [01:01:50] Speaker 03: All right, we'll give each of you another minute if you have an argument. [01:01:58] Speaker 00: A few points of clarification, Your Honor. [01:02:01] Speaker 00: There was nothing about signing the subscription agreements for the Oregon Trust. [01:02:10] Speaker 00: The union was involved throughout the process. [01:02:16] Speaker 00: It's not as if there was a separation between the trusts and the union when it pertains to the Oregon Trust. [01:02:23] Speaker 00: And with respect to the Oregon Trust, what is the status quo? [01:02:27] Speaker 00: Well, you can look at the status quo from the conduct. [01:02:31] Speaker 00: The conduct of the union and the trusts was that they were accepting contributions prior to the cancellation of the believed subscription agreement, and that would be whatever those contributions were and those benefits would be the status quo pursuant to the union's own conduct as to what the status quo was. [01:02:48] Speaker 00: There should be a stop from saying that, well, there was no subscription agreement, so it's whatever the status quo that we determined it to be. [01:02:55] Speaker 00: And with respect to the implementation of company medical benefits, there was an exigent circumstance that arose. [01:03:04] Speaker 00: Once it was determined that, as the board determined, that the three Washington trusts were validly canceled, [01:03:12] Speaker 00: Parties had bargained from February 17th to the 25th on an interim agreement pending an overall agreement. [01:03:19] Speaker 00: There were several proposals that the company made, each of which were rejected by the union. [01:03:23] Speaker 00: And then the union said, we're going to let the board decide this. [01:03:25] Speaker 00: That's classic impasse. [01:03:27] Speaker 00: The board, I'm sorry, the company at that point was faced with a decision. [01:03:32] Speaker 00: And it had an exigent circumstance similar to RBE Electronics' side in the brief, St. [01:03:36] Speaker 00: Mary's Hospital's side in the brief, Meal Contractor's side in the brief, where it's a privilege to implement. [01:03:41] Speaker 04: The board's order faults the company for imposing, as it says, the company medical plan. [01:03:50] Speaker 04: But in fact, at least as I understand it, there's no actual penalty associated with that. [01:03:58] Speaker 00: I'm not aware of one. [01:04:00] Speaker 04: So the employees were covered by the company plan looking backward and looking forward. [01:04:10] Speaker 04: The company doesn't have a right to impose the company plan. [01:04:13] Speaker 04: On the other hand, unless something's worked out in the interim or forever, there's no medical coverage. [01:04:22] Speaker 00: I guess that would be the board's order. [01:04:25] Speaker 00: And what the company is saying is that under extant board law, it's privileged to implement its health care plan to cover employees, otherwise they would be without coverage. [01:04:34] Speaker 00: And it did so consistent with prior board law. [01:04:37] Speaker 03: Are any of those previous cases where the economic exigency has to do with employee benefits? [01:04:45] Speaker 00: I don't know which benefits you're referring to, Your Honor. [01:04:49] Speaker 03: Well, any kind of employee benefit. [01:04:50] Speaker 03: When you say that there are those past cases about existencies, my dim recollection of those cases is that they were about things of concern to the employer's economic success. [01:05:07] Speaker 03: But they were not things about [01:05:12] Speaker 03: benefits to the employees. [01:05:13] Speaker 03: They weren't wages. [01:05:14] Speaker 03: They weren't health benefits. [01:05:16] Speaker 03: They weren't pension. [01:05:17] Speaker 03: They weren't anything like that. [01:05:18] Speaker 00: There weren't. [01:05:19] Speaker 00: There was, I believe, if I'm not mistaken, it's male contractors. [01:05:23] Speaker 00: They would be losing health care coverage. [01:05:24] Speaker 00: The employees would. [01:05:25] Speaker 07: What case is that? [01:05:26] Speaker 00: I believe it was male contractors. [01:05:28] Speaker 00: I believe that's the one. [01:05:29] Speaker 00: But there were three that we cited, and I'm not sure which of them is. [01:05:32] Speaker 04: And in fact, there may have been two of the three. [01:05:34] Speaker 04: The vacancy occurred because an agreement worked out before there was a union in the picture. [01:05:42] Speaker 04: came to an end. [01:05:45] Speaker 04: That's a provision for medical care. [01:05:48] Speaker 04: Expired provision was based on pre-union activity. [01:05:53] Speaker 04: It came to an end. [01:05:55] Speaker 04: That was it. [01:05:56] Speaker 04: But it wasn't the case of the employer exercising an authority given it by the CBA and associated documents. [01:06:10] Speaker 00: If there are no other questions, Your Honor, I think I will just reiterate that when we ask that the court find no violation for cessation of contributions or for implementation of the company plan and or to remand back to the board for proceedings consistent with Manitowoc Ice. [01:06:28] Speaker 02: Thank you, Your Honor. [01:06:46] Speaker 06: The union will close with, in response to what the NLRB said, it's our position that NLRB confused the termination of a contractual obligation with the trust fund, a third party with an employer's obligation to keep the status quo with the union who it has a duty to collectively bargain with. [01:07:07] Speaker 06: Did CBA expire? [01:07:10] Speaker 06: Yes, CBA, yes. [01:07:12] Speaker 04: How could it become confused about that? [01:07:14] Speaker 06: Because the cancellation of the subscription agreement, that only canceled the subscription agreement. [01:07:22] Speaker 06: It did not waive the union's right to bar it. [01:07:25] Speaker 04: So we think those are two separate concepts. [01:07:39] Speaker 06: It's our position to confuse those two concepts of just because you cancel a subscription agreement, you still have a duty to bargain. [01:07:45] Speaker 06: Ideally, what's supposed to happen is you're supposed to bargain an impasse and then cancel the subscription agreement. [01:07:53] Speaker 06: And it's also our position that our situation is distinguished from Cawthorn. [01:07:59] Speaker 06: There's different language. [01:08:00] Speaker 06: It's a different bargaining situation. [01:08:02] Speaker 06: And because it wasn't automatic, the employer had a duty to bargain impasse before canceling. [01:08:08] Speaker 03: Does the union not have any concern that the consequence of the decision is that until a new CBA is agreed on, there would be no health care in the circumstances of the lawfully canceled health care plans? [01:08:24] Speaker 03: Yes, I mean, yes. [01:08:25] Speaker 03: And we, of course, want our members covered, and we feel, yes. [01:08:28] Speaker 03: So if that's the case, and if you accept, again, for purposes of this discussion, that the cancellations were proper, what do you want? [01:08:36] Speaker 03: The NRB's result is that there's no health care coverage during that period, right? [01:08:44] Speaker 03: Is that right? [01:08:45] Speaker 03: That seems like to be their position, that there's no company plan, and they lawfully cancel the trust. [01:08:54] Speaker 03: Is that in the best interest of your members? [01:08:57] Speaker 03: I can see an argument where it is. [01:08:58] Speaker 03: That is, the argument would be that puts you in a position to bargain now for the precise plan you want. [01:09:05] Speaker 03: Is that the answer, that we're willing to accept no benefits during this period because we don't want them imposing something that will then be impossible to dislodge? [01:09:16] Speaker 03: Is that the union's view? [01:09:17] Speaker 06: Well, look, obviously we want health care coverage for our members, and we don't like the situation of our members not having health care. [01:09:23] Speaker 06: But when they cancel those subscription agreements, they're out of the trust. [01:09:29] Speaker 06: They create a situation where they can no longer be part of the trust. [01:09:33] Speaker 06: That's of their own doing. [01:09:34] Speaker 06: So the employer created this problem by not bargaining an impasse and canceling the subscription agreements first. [01:09:41] Speaker 06: So we don't like it, but that's the situation we're in. [01:09:43] Speaker 06: So we just have to, you know, [01:09:46] Speaker 03: It's not proper for the employer to do anything until you reach a new agreement, is that correct? [01:09:53] Speaker 03: That's correct. [01:09:55] Speaker 06: There can be interim agreements. [01:09:56] Speaker 06: Anything you don't both agree on, I'm sorry. [01:09:58] Speaker 06: Correct, yes, correct. [01:10:02] Speaker 02: We'll take the matter under submission, thank you.