[00:00:00] Speaker 01:
16-1328 A.L.

[00:00:02] Speaker 01:
Pennsylvania State Corrections Officers Association Petitioner versus National Labor Relations Board.

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Mr. Miller for the petitioner, Mr. Jost for the respondent.

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I know the courtroom clears.

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turn that screening off.

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All right, Mr. Miller, good morning.

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Thank you, Your Honor, and thank you for the opportunity to appear in front of this court.

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My name is Michael Miller from the law firm of Eckerd Siemens with my colleague Tricia Lantz.

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I'm here to represent the State Correctional Officers of Pennsylvania.

[00:00:52] Speaker 03:
And we turn, I guess, from the weighty issues that you've previously discussed to the interests of five correctional officers.

[00:00:59] Speaker 01:
Can you move that a little closer?

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to five correctional officers in Pennsylvania, which I'm sure happens in this court a fair amount.

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I'd like to make two fundamental points and then argue.

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One, the board erred in its treatment of one of the correctional officers, Bill Park, in determining that he did not willfully refuse to take substantially equivalent employment, and two, that the board erred in imposing an additional 24 weeks of trans-Marine remedy instead of two weeks when the parties reach impasse.

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And as I indicated...

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reach the park issue if we find that the board erred in refusing to find impasse?

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No, Your Honor, I don't believe you do.

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As the minority member, Ms.

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Camara, pointed out, the park, both by the ALJ's determination and by the minority member's determination, was owed at least two weeks of transferring back pay.

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And if the court accepts the fact that the parties got the impasse, I think, on April 11th, two weeks after they started bargaining and imposed a two-weeks trans-Marine remedy, then the park issue would be the same under either analysis.

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As I indicated to the court, this case involves five correctional officers who were temporarily detailed to the State Correctional Officers Association, a statewide union.

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But while they were detailed to be business agents for the Correctional Officers Association, they remained paid by the Commonwealth, they got leave days by the Commonwealth, they had pension credit by the Commonwealth, and they had an absolute obligation and agreed to bargain to return to their previous position as correctional officers

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once their appointment ended at any particular time.

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Was the Commonwealth paying their full salary?

[00:02:44] Speaker 03:
The Commonwealth paying a partial salary, and then there's an additional part made up by the Correctional Officers' Association in my recollection.

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Okay, and the temporary assignment ran up to eight years in one case, right?

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In the case of Bill Park, he had an eight-year... I think everyone had at least three years in the temporary assignment.

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Everyone had at least three years, but if you...

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correct in thinking that, well, let me ask you to clarify.

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What sort of obligation they undertook, the five agents undertook to return to the Commonwealth?

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The record demonstrates that Mr. Park and Mr. Sonny and Mr. Blackwell, all of whom testified in front of the ALJ, indicated that they understood that once their time with the State Correctional Association ended,

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whenever that may have ended, that they would return to their position as correctional officers.

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And in fact... That they could.

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I'm sorry?

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That they could or that they would?

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That they would return.

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They would not have obligated to do so?

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I don't see how it's possible.

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Well, they could always... Your Honor, they could always leave the position if they wished, but the job as correctional officer remained open to them by agreement between the Commonwealth and the Association.

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And in fact, they were always correctional officers.

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They always... So that was a right they had, not an obligation.

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I could concede the point that they didn't have an obligation to return, but it was substantially equivalent employment to which everyone else returned.

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And Mr. Park admitted that he knew it wasn't a permanent appointment to be a business agent.

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He knew he had the right to return.

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Whether it was substantially equivalent is an entirely separate question.

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I thought they were technically on a leave of absence.

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Is that not the case?

[00:04:30] Speaker 03:
That's correct.

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That's what the record demonstrated.

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They were given a leave of absence to serve as business agents for the state correctional officers.

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But during that leave of absence, they continued to accrue benefits from the Commonwealth, and they retained their position as correctional officers and had the opportunity to move back to their position as correctional officers.

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And in fact, Mr. Park admitted

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that he had the opportunity to ask for a transfer, knew he had the opportunity to ask for a transfer to a position closer to his house and simply chose not to.

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In that circumstance, it seems to me that the board erred in substituting its judgment for the judgment of the ALJ, who was able to listen to Mr. Park and evaluate his testimony, his credibility, and determined that he had not.

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He had willfully decided not to take the job available to him.

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Can we turn to the question of impasse?

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Yes.

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As I understand it, and I'm looking at pages 222, 23 of the joint appendix,

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The offer by the employer, which you're representing, was to pay the gross weekly salaries of the employees, I guess, at the

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At which of the institutions, as either in their on leave position or their regular position as guards?

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I believe it was on their on leave position.

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On leave positions, OK.

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We don't have in the record, do we, any indication that the apparently absolutely secure one week of that gross pay was less than the two weeks net pay required by Transmarine?

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I mean, this is a point that the Senator made.

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Right.

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No, you're right, Your Honor.

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I don't believe that that's in the record.

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Assuming the gloss that the board put on the notion of what is a legal impasse was correct, it was still the case that, so far as appears, the offer of the employer was consistent with the trans-Marine minimum.

[00:07:05] Speaker 03:
That is the point that the minority member made, and we agree with that point, that no matter what the board decided with respect to the subjects discussed, which were discussed bilaterally by the way, the issue of mileage was raised by both parties,

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There was no issue of bad faith that was raised by the board or by the union.

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And this differs from the cases in which the board relies where bargaining was different.

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The union here never said, well, let's continue bargaining.

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The union here readily agreed that they were at impasse.

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And we contend that the board aired it.

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The board put this great stress on the amount being insufficient under its

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view of Transmarine, but there simply appears to be no evidence that the amount offered by the employer was insufficient.

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And the Court could, I think, fairly conclude from that point that the Board's determination was not based on substantial evidence and would therefore be reversible.

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Well, that does seem to apply to at least four of the five.

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Mr. Clark may be in a different situation.

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where the maximum amount he might have been owed under the board's order would have been $3,158 and the minimum would have been the neighborhood of $2,500.

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We don't know when he earned his offsetting wages.

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But he was offered by the employer

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2151, which would be less than either, less than the range, even less than the minimum that he might have been due.

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Right, and the minority member of the board pointed out that the appropriate amount would have been a two-week amount, which is what the minority member believed the... Well, a two-week amount would have been $4,300.

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And he was offered less than that by any encounter.

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Right.

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But again, the issue is if the board disagreed with it, their remedy was to order a two-week trans-marine remedy when the parties got the impasse.

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And the board went way beyond that by simply picking August as the time that the matter should end.

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rather than accepting the fact that the parties agreed that they were at impasse in April.

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If the parties can agree that the union no longer exists, the parties can also agree that they're at impasse in April after two weeks.

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Both statements can be credible and can be true.

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The fact that both parties may have discussed mileage or may have discussed anything

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It is not sufficient to suggest that it poisons the well, especially when the discussion is bilateral.

[00:10:09] Speaker 04:
Well, let's assume for the moment that the party's agreement that there is impasse is not viable for the moment, OK?

[00:10:21] Speaker 04:
And that the impasse is over in part the mileage.

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Is the mileage not a mandatory subject in part?

[00:10:32] Speaker 03:
What we've contended is the board certainly disagrees that it's not, but again, even if the board would conclude that the bilateral discussion of mileage was improper, it's not sufficient to poison the wells such that the declaration of impasse was not effective.

[00:10:50] Speaker 04:
And again, my premise is that maybe that's not my, you know,

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I mean, suppose they say, well, yes, the union acquiesced in this for some illegitimate reason.

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They were threatened or what have you.

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That's not this case.

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I don't believe that was found in the case.

[00:11:05] Speaker 04:
No, of course not.

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But the question is, suppose that there's bargaining over mileage goes to impasse.

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I mean, if that's only a permissive subject to bargaining,

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Is it one on which an employer or either side can go to the impacts?

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What is the law on that question?

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I believe that it is a permissive subject requirement, not a mandatory subject.

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is, Your Honor, that even if it is a permissive subject of bargaining, the parties can discuss it, and certainly the bilateral discussion of it shouldn't occasion a 24-week penalty by the board for exceeding.

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The question is whether, if one party absolutely insists on a mileage that should be decided and there's an impact – resulting impasse, and that's only a permissive subject, does that not mean that it's not a valid impasse?

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No, Your Honor, I'm afraid I would disagree with that.

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And if it was an impermissible impasse, I'm not exactly sure why the general counsel would stipulate to the fact that a lawful impasse had been reached.

[00:12:18] Speaker 01:
Speaking of the stipulation, on page 17 of your opening brief you say that the Union stipulated to that.

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Now the stipulation of facts was entered into between the General Counsel and the Association 18 months after the Union went out of existence.

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So what did you mean by that?

[00:12:41] Speaker 03:
Your honor, let me clarify.

[00:12:43] Speaker 03:
I appreciate it.

[00:12:44] Speaker 03:
Thank you.

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It's true that the stipulation was entered into between the general counsel and

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and the association prior to the hearing in front of the ALJ, the union conceded that they were at impasse in testimony in front of the ALJ.

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So perhaps that was, and I'm sure they were a party to that stipulation necessarily, the general counsel was.

[00:13:10] Speaker 01:
Thank you, Your Honors.

[00:13:20] Speaker 00:
May it please the court?

[00:13:21] Speaker 00:
My name is Micah Jost for the Labor Board.

[00:13:23] Speaker 00:
I'd like to begin with Judge Ginsburg's question regarding permissive versus mandatory subjects.

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Yeah, I just couldn't find an answer.

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And there I want to emphasize, Your Honor, that first of all, as I heard it, counsel conceded that the debt

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regarding mileage reimbursements was in fact a permissive subject, and it was certainly either permissive or illegal.

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If a party insists to impasse on a permissive or illegal subject, that is a violation of Section 8A5.

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That was my understanding, but I couldn't find validation of that.

[00:13:55] Speaker 00:
Your Honor, the Teamsters' local 515 case from this court

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which we cite on our brief at page 26 in the footnote, stands for that exact proposition.

[00:14:04] Speaker 04:
Well, shame on me, though.

[00:14:06] Speaker 00:
No, not at all, Your Honor.

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And this, of course, is a trans-Marine case, and there was no finding of a violation.

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There was simply a finding that there was not bargaining that satisfied the good faith.

[00:14:18] Speaker 04:
Yeah, so if, as it seems, the employer offered a dollar amount in excess of what its trans-Marine obligation was, then where's the complaint?

[00:14:29] Speaker 00:
On the facts, Your Honor, it did not.

[00:14:31] Speaker 00:
That's never laid out in anything the board says.

[00:14:35] Speaker 00:
Well, it's also not challenged in anything that the employer filed with the board.

[00:14:39] Speaker 00:
There's no argument that as a matter of simple math or arithmetic that the... Well, the math was done by the dissenting board member.

[00:14:48] Speaker 02:
I don't believe that it was in this regard.

[00:14:51] Speaker 02:
It may not have been.

[00:14:53] Speaker 02:
You know, all the pluses and minuses tabulated, but certainly the assertion as to what the relationship between what was offered and the transmemory minimum was made.

[00:15:07] Speaker 00:
Well, in this case, Your Honor, the offer that was ultimately made, which you pointed out at Joint Appendix 223, came to a sum of zero.

[00:15:16] Speaker 00:
What it said to read from the offer is that after taking away the one week of severance,

[00:15:23] Speaker 00:
The other week, quote, the amount of back pay will be in credit only to reduce the amount of invalid and unsubstantiated mileage.

[00:15:30] Speaker 00:
In other words, the employer was insisting.

[00:15:32] Speaker 02:
Yeah, I think you're overlooking the language.

[00:15:36] Speaker 02:
I'm looking in the indented paragraph on page 223.

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PSCOA will not seek reimbursement for that amount only in any subsequent civil action.

[00:15:49] Speaker 02:
So I take it.

[00:15:51] Speaker 02:
This offer is putting off the question of the mileage to any subsequent civil action and saying that as for this amount, you keep it.

[00:16:06] Speaker 00:
Regardless, the board reasonably read that language as demanding an offset of a contingent potential debt that the employer was hoping to recover in the future.

[00:16:17] Speaker 00:
As to Park, for example, against whom the employer has never sought any reimbursement, there was no separate recognition that he would receive money.

[00:16:24] Speaker 00:
Instead, there was that language that it would be a credit only, which suggests that it would not be anything at all for someone for whom it wouldn't function as a credit.

[00:16:32] Speaker 00:
And the employer, if you look at their exceptions at Joint Appendix 273, they endorsed that.

[00:16:37] Speaker 00:
They endorsed that view of their offer by accepting to the ALJ's finding, quote, that the board's order required a minimum of two weeks of back pay, but did not permit a set off against that amount.

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And it goes on to say that the set off would have been for debts that it claimed.

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We cite a number of cases, including the Teamsters Local 705 case, where the board has explained that back pay is a public remedy.

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It is not something that a party can offset with debts that are alleged as being separate from the back pay remedy itself.

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And that's exactly what the employer insisted to impasse on doing here.

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It is conceded that that was a permissive subject.

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Therefore, it was not entitled to insist on it to impasse.

[00:17:21] Speaker 00:
And the board certainly made a reasonable policy judgment that where we order back pay, and it's laid out in the clearest possible terms at the board's order at Joint Appendix 28, where the ALJ said you have to do two things.

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First, you have to bargain about the effects.

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Second, you have to pay back pay in accordance with a specific formula.

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And the quote from the ALJ's order there, which the board adopted, is that Transmarine, quote, sets a floor of two weeks back pay.

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The employer here instead believed that it could go in and try to reduce that back pay, reduce the sum it would actually pay these individuals to zero dollars.

[00:18:02] Speaker 00:
And that is what it was not allowed to do.

[00:18:04] Speaker 00:
The employer never filed exceptions to the ALJ's order and, excuse me, didn't.

[00:18:09] Speaker 00:
didn't file acceptance to the ALJ's recommended order before the board, and it never sought review of the board's order in court.

[00:18:16] Speaker 00:
So it can't go back and challenge that order as somehow punitive or as imposing obligations that it wasn't required to actually abide by.

[00:18:27] Speaker 00:
So again, the board reasonably looked at the language of the employer's offer, the language of the employer's own memo from April 4, in which it said that it was going to conduct a review of the two-week back pay remedy that the ALJ ordered.

[00:18:40] Speaker 00:
And then the employer confirmed that at the hearing, where it said that the parties looked at the two-week back pay period that the judge had suggested and sought offsets from that.

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As far as math.

[00:18:53] Speaker 04:
Wait a minute.

[00:18:54] Speaker 04:
That's one second.

[00:18:55] Speaker 04:
Yes, Your Honor.

[00:18:57] Speaker 04:
The offset they sought was from the two weeks of gross pay.

[00:19:05] Speaker 04:
Right.

[00:19:06] Speaker 04:
That's correct.

[00:19:07] Speaker 04:
Not from the net amount required under Transmarine.

[00:19:11] Speaker 00:
Right.

[00:19:12] Speaker 00:
That's correct, Your Honor.

[00:19:13] Speaker 04:
And so even the first week, which has been paid, I think, or at least is not in dispute, this first week of severance pay, for everyone except Mr. Hart, exceeded the two weeks' net under Transmarine.

[00:19:26] Speaker 00:
I don't think that's right for two reasons, Your Honor.

[00:19:28] Speaker 00:
The first is that, again, they offered zero.

[00:19:32] Speaker 00:
They offered zero because they would be keeping it all back as a credit.

[00:19:35] Speaker 04:
If it's already paid, though, it's not an offer for zero.

[00:19:39] Speaker 00:
I'm sorry, as to the second week.

[00:19:40] Speaker 00:
I agree, as to the first week.

[00:19:41] Speaker 00:
Oh, right.

[00:19:42] Speaker 04:
But I'm saying the first week by itself was more than the requirement of transport.

[00:19:46] Speaker 00:
And I don't think that's clear from the record at all, Your Honor.

[00:19:48] Speaker 04:
Well, it's not entirely clear with regard to Mr. Park.

[00:19:51] Speaker 04:
Let's take hood, okay?

[00:19:54] Speaker 04:
The net interim wage, two weeks net of the interim wages was $448.86.

[00:20:02] Speaker 04:
He'd already received $21.47.

[00:20:05] Speaker 00:
And I think part of the confusion in this case arises from the unusual payment structure that these individuals had, where they got paid, in the first instance, part of their salary from the union, which acted as an employer, and part of their salary came from the Commonwealth.

[00:20:20] Speaker 00:
And then the employer reimbursed the Commonwealth.

[00:20:23] Speaker 00:
So for that first week, if I'm understanding it correctly, what would have happened is

[00:20:29] Speaker 00:
the same payment structure continued.

[00:20:30] Speaker 00:
They got the ordinary payment they would have gotten from the Commonwealth.

[00:20:34] Speaker 00:
And then they also got the employer's payment, which is a smaller sum.

[00:20:38] Speaker 00:
And the employer then would have reimbursed the Commonwealth.

[00:20:41] Speaker 00:
So to count that as going to the severance and also going to the net back pay issue, I think, would be to double count the amount that they received.

[00:20:52] Speaker 02:
Is there anything in the board's opinion going through that reasoning?

[00:20:57] Speaker 00:
I don't see any discussion of that math.

[00:21:01] Speaker 00:
And again, it's because there was no dispute.

[00:21:04] Speaker 00:
from the employer that it was trying to offset this amount.

[00:21:07] Speaker 00:
There was no argument challenging the board's arithmetic in this regard, and so the board didn't have the opportunity.

[00:21:14] Speaker 00:
This was never presented before.

[00:21:15] Speaker 04:
So that would have been in the exceptions to the ALJ's report, is that right?

[00:21:19] Speaker 00:
That would have been the appropriate place to make that order.

[00:21:21] Speaker 04:
And where was that to be found?

[00:21:23] Speaker 00:
The exceptions to the ALJ's recommended order are at Joint Appendix 272 and the pages that follow.

[00:21:31] Speaker 00:
And there,

[00:21:32] Speaker 00:
There, and in its brief, the focus of the employer's argument was entirely on this idea that we're talking about mileage here.

[00:21:39] Speaker 00:
Mileage is a mandatory subject.

[00:21:41] Speaker 00:
The board should look at our proposals and say that they are mandatory, and therefore we can insist on them to impasse.

[00:21:47] Speaker 00:
Of course, that's an argument that the employer lost on, and it instead latched onto new arguments from Member Miskamara in its arguments before this court.

[00:21:58] Speaker 04:
Here's the second exception.

[00:22:00] Speaker 04:
They're accepting from, this is at 273, to the ALJ's finding that the board order required a minimum of two weeks of back pay, but did not permit a set off against that amount of an earlier payment of one week of pay.

[00:22:17] Speaker 00:
Right.

[00:22:17] Speaker 00:
So they are.

[00:22:18] Speaker 00:
Well, as to that earlier payment of one week, that's again the severance that the board corrected to ALJ and said, yes, everyone has conceded all along that that is severance, which under WR Grace is properly offset.

[00:22:32] Speaker 00:
But then the employer goes on in that same exception to say that it should have been allowed to offset whatever it was alleged was improper mileage reimbursement.

[00:22:41] Speaker 04:
Yeah, it wants to offset both.

[00:22:43] Speaker 04:
Right.

[00:22:43] Speaker 04:
And if it's wrong about the mileage, it still has complained.

[00:22:48] Speaker 04:
I thought you were saying they never took an exception, but they've accepted to the denial of cognizance over the first week's severance pay.

[00:22:57] Speaker 04:
And saying that that is permissible.

[00:23:02] Speaker 00:
And the board agreed with that.

[00:23:04] Speaker 00:
And if I understand.

[00:23:05] Speaker 04:
And once the board's agreed with that, it follows that

[00:23:10] Speaker 04:
If that amount is more than they would do under Transmarine, does it not, then employers discharge its obligation.

[00:23:20] Speaker 00:
I guess I disagree with your premise that this was more than the employer was required to pay.

[00:23:26] Speaker 00:
Because otherwise, why would it have even sought a credit in regard to the second week?

[00:23:31] Speaker 04:
Well, why wouldn't it have?

[00:23:33] Speaker 04:
Well, it's saying, look.

[00:23:36] Speaker 04:
Transmitting requires I give you two weeks of your net pay.

[00:23:40] Speaker 04:
I'll give you two weeks of your gross pay subject to some offsets.

[00:23:45] Speaker 04:
That's the proposal.

[00:23:48] Speaker 04:
But I've already given you one week of your gross pay.

[00:23:51] Speaker 04:
So I've covered what the board required.

[00:23:58] Speaker 00:
I guess without having the board's actual math before me and without having the board having it.

[00:24:05] Speaker 00:
Is it all clear the board did any math?

[00:24:08] Speaker 00:
The math would have been done in the compliance specification.

[00:24:10] Speaker 04:
The only math I saw was two weeks is more than one.

[00:24:12] Speaker 04:
I mean, two weeks minus one week is less than two weeks, which is of course true.

[00:24:20] Speaker 00:
It's an interesting argument, Your Honor, and it's an argument that should have been placed before the Board in the terms that Your Honor is describing it, so that the Board could address this.

[00:24:30] Speaker 04:
So you think the exception is not sufficient?

[00:24:32] Speaker 00:
I don't agree that exception is remotely raising the issue that you're describing here.

[00:24:35] Speaker 00:
The employer there was simply saying, we disagree that there was a minimum amount here of two weeks that we weren't allowed to take away from.

[00:24:41] Speaker 00:
The Board said, yes, there was.

[00:24:44] Speaker 04:
Well, they didn't say it's not.

[00:24:46] Speaker 04:
I mean, except to the others finding that the board order required a minimum of two weeks but did not permit a set-off against that amount of an earlier payment of one week.

[00:24:58] Speaker 04:
I mean, that's sufficient, isn't it, to say, look, we paid one week and that's – that should be noticed.

[00:25:04] Speaker 04:
That should be taken into account.

[00:25:06] Speaker 00:
I think that is an argument that could have been made.

[00:25:09] Speaker 00:
I see that as an expansive reason.

[00:25:13] Speaker 04:
Maybe they didn't elaborate on this exception in their brief to the board.

[00:25:17] Speaker 04:
I don't know.

[00:25:17] Speaker 00:
They certainly didn't elaborate on it in any way that put the board on notice that that was the contention they were trying to advance.

[00:25:24] Speaker 00:
And that's why the subject hasn't been briefed or argued in any sort of detail before the court.

[00:25:30] Speaker 00:
So again, it's waived both as a matter of section 12.

[00:25:34] Speaker 02:
It has been briefed.

[00:25:35] Speaker 02:
I mean, it's in the blue brief.

[00:25:36] Speaker 00:
No, I mean before the board.

[00:25:38] Speaker 00:
Oh, I'm sorry.

[00:25:38] Speaker 00:
I thought you were talking about before us.

[00:25:40] Speaker 00:
I agree that it hasn't been briefed before the board.

[00:25:43] Speaker 00:
Excuse me, before the board or before the court.

[00:25:45] Speaker 00:
I think you're wrong there.

[00:25:46] Speaker 00:
In the form that Your Honor is arguing.

[00:25:49] Speaker 00:
But I respectfully disagree with that reading of their brief.

[00:25:53] Speaker 00:
And that's why we didn't come back in our brief and try to present a detailed calculation.

[00:25:59] Speaker 04:
Is the employer's brief to the board in the JA?

[00:26:05] Speaker 00:
Yes it is.

[00:26:06] Speaker 00:
It's sort of unusual that that would be contained in the Joint Appendix, but in this case we do have it.

[00:26:11] Speaker 00:
It follows immediately after their exceptions.

[00:26:14] Speaker 00:
Their argument in that regard starts at Joint Appendix 286.

[00:26:19] Speaker 00:
And there, again, they focus on the concept that this was a mandatory subject because mileage reimbursement in the abstract is perhaps a mandatory subject in their view.

[00:26:30] Speaker 00:
And they tried to stretch that into saying that offsetting a debt is also a mandatory subject.

[00:26:35] Speaker 00:
And that's contrary to longstanding board law, and they've now abandoned that in the argument today.

[00:26:45] Speaker 00:
So unless the court has any further questions, we would ask the court simply to focus on the arguments that were properly made to the board and preserve before this court, which provide no basis for overturning the board's reasonable policy judgments and fact-finding in this case.

[00:27:01] Speaker 00:
Thank you.

[00:27:01] Speaker 00:
Thank you.

[00:27:02] Speaker 01:
Does Mr. Miller have any time left?

[00:27:06] Speaker 01:
Why don't you take one minute?

[00:27:10] Speaker 01:
Your Honor.

[00:27:11] Speaker 01:
If you don't want it, that's fine.

[00:27:12] Speaker 01:
OK.

[00:27:12] Speaker 01:
Call the next case.