[00:00:01] Speaker 00: Case number 16-1089 at L. Rhino Northwest LLC Petitioner versus National Labor Relations Board. [00:00:09] Speaker 00: Mr. Garnett for the petitioner. [00:00:11] Speaker 00: Mr. Loro for the respondent. [00:00:12] Speaker 00: Ms. [00:00:13] Speaker 00: Eglinton for the intravenor. [00:00:34] Speaker 05: Good morning. [00:00:36] Speaker 02: Good morning. [00:00:37] Speaker 02: May it please the court. [00:00:38] Speaker 02: My name is Tim Garnett, and I'm here to represent Rhino Northwest. [00:00:43] Speaker 02: It's a real honor to appear before you this morning. [00:00:46] Speaker 02: The board's cross application for enforcement of the board's order should be denied in our petition for review granted, because the board's decision in this particular case was not only arbitrary, [00:01:00] Speaker 02: It also ignored substantial evidence in the record. [00:01:05] Speaker 02: It was arbitrary because the regional director ignored evidence. [00:01:10] Speaker 02: And in fact, it missed the board in its brief mischaracterizes several parts of the evidence. [00:01:17] Speaker 02: And in fact, it's also not supported by substantial evidence because the board failed to even recognize evidence that distracted from its decision. [00:01:27] Speaker 02: In fact, when you look at the regional director's decision, they point to about 39 different facts. [00:01:33] Speaker 02: that were in the record, and only eight of those of the employers. [00:01:37] Speaker 02: So about 83% of the regional director's decision was based on one side. [00:01:43] Speaker 02: And then when the board wrote its brief in this particular case, they relied on about 104 different pieces of fact. [00:01:50] Speaker 02: And only about 14 or so came from the employer side. [00:01:54] Speaker 02: So about 88% of the facts. [00:01:59] Speaker 02: And there was a substantial part of the evidence that was credibility determinations that were never made. [00:02:07] Speaker 02: In fact, the regional director's hearing officer in this particular case specifically said during the hearing, I am not going to make any credibility determinations. [00:02:17] Speaker 02: And there were clearly facts that were at opposite ends of the spectrum with each other. [00:02:23] Speaker 02: The regional director accepted all those determinations. [00:02:27] Speaker 02: the National Labor Relations Board without any without any recitation or any kind of discussion of the regional director's decision accepted it as is. [00:02:39] Speaker 02: But if you examine the facts and you give a fair view of the facts, [00:02:44] Speaker 02: I think you'll find that the company met its burden of proof of the overwhelming community of interest that's articulated in Blue Man Vegas as well as the specialty healthcare case. [00:02:58] Speaker 02: And in fact, I really like the Venn diagram that's in Blue Man Vegas because it shows an overlap of eight different factors. [00:03:08] Speaker 02: And in Blue Man Vegas, it shows that you don't have to have a perfect overlap of all the facts in order to meet the overwhelming standard. [00:03:16] Speaker 02: In our particular case, we met seven of those eight factors. [00:03:22] Speaker 02: And probably the most important fact that the board never addressed and ignored was one of the eight factors set out in Blue Man Vegas. [00:03:32] Speaker 02: And that is, what is the industry practice? [00:03:35] Speaker 02: In other words, that's a pretty good measurement of what is standard and what's an appropriate bargaining unit. [00:03:42] Speaker 02: We had uncontested evidence, in this case from the union, that has 70 collective bargaining agreements in the Seattle area and in the Northwest. [00:03:53] Speaker 02: And except in one of those cases, all of them included both riggers and stagehands. [00:04:02] Speaker 06: You know that's not disposable. [00:04:05] Speaker 02: I know it's not dispositive, but it's certainly one of the eight factors that they never bothered to consider. [00:04:10] Speaker 06: I know it's not dispositive, but if you... It just doesn't prove the point on the part of the inquiry that you carry the burden of proof. [00:04:23] Speaker 06: If there is a contrary practice, there's no winning point there. [00:04:28] Speaker 02: But Blue Mandaga set out eight different factors that the board should consider. [00:04:33] Speaker 02: And we met seven of those factors. [00:04:36] Speaker 02: And they didn't even address that one. [00:04:38] Speaker 02: They didn't even address the issue of benefits. [00:04:40] Speaker 02: And the benefits are absolutely identical. [00:04:42] Speaker 02: And that's, again, one of the factors that this court set out in Blue Man Vegas that the board should be considering. [00:04:49] Speaker 02: So again, if you look at all of the facts, you will find that this is a type of organization where employees literally work side by side. [00:04:57] Speaker 02: They all work on a stage probably about half the size of this courtroom. [00:05:01] Speaker 02: And they all work on one piece of equipment called a truss. [00:05:05] Speaker 02: A truss is a long piece of metal that holds the lights, speakers, and audio systems on that. [00:05:13] Speaker 02: And the equipment is brought out by loaders, by stage hands. [00:05:19] Speaker 02: Then they work side by side with riggers to put lights on this truss, to attach speakers on this truss, or they call it audio boxes, and also video screens that we've seen. [00:05:30] Speaker 02: I mean, it's absolutely a team effort to get this job done on a stage in a very short period of time. [00:05:37] Speaker 02: We're talking about four hour periods to get ready for a concert. [00:05:41] Speaker 02: get the board in its. [00:05:43] Speaker 01: So even if it's true that one could construct an appropriate bargaining unit that enveloped all of the employees that you're referring to, you have to show that there's no legitimate basis for not constructing it that way, right? [00:05:57] Speaker 02: True. [00:05:58] Speaker 02: Well, it's arbitrary or capricious. [00:06:01] Speaker 02: I mean, there's a number of differences that are utterly inappropriate. [00:06:04] Speaker 02: There's a lot of different standards that this court, as well as others, have articulated. [00:06:11] Speaker 02: And if you look at the history of the overwhelming standard, there's not been a single case yet that has found that any employer met that standard. [00:06:23] Speaker 02: So is it insurmountable, or is it not? [00:06:26] Speaker 02: Or is it an illusion, or is it not? [00:06:28] Speaker 02: If there's any case where the facts meet that overwhelming standard, it is this one. [00:06:34] Speaker 02: Because again, if you look at Blue Man Vegas, or you look at the criteria in specialty health care, [00:06:40] Speaker 02: We meet those criteria with one exception. [00:06:42] Speaker 02: Admittedly, the riggers have a higher degree of training and skills. [00:06:47] Speaker 02: But again, they work side by side as stagehands to get these events underway in a very short period of time. [00:06:54] Speaker 02: And in fact, when the rigger's responsibility is over with, [00:06:58] Speaker 02: they move over into a stagehand role. [00:07:00] Speaker 02: During a concert, for example, they'll go up into the heights of the building and operate the lights or do other type of lighting activities. [00:07:07] Speaker 02: And then when the concert's over with, they reverse and put the equipment away. [00:07:12] Speaker 02: And all this is a team effort. [00:07:14] Speaker 02: In fact... It doesn't work the other way, right? [00:07:16] Speaker 02: The other employees can't do the rigorous work. [00:07:18] Speaker 02: That is true. [00:07:19] Speaker 02: They cannot because there is a certain level of skill. [00:07:22] Speaker 02: Except rope access employees also can perform at heights, and they also have the exact same type of equipment that they have to work together with. [00:07:30] Speaker 02: But they can't do the riggers work. [00:07:32] Speaker 02: No, they cannot. [00:07:33] Speaker 02: Admittedly, they cannot do the riggers work. [00:07:34] Speaker 02: That's absolutely right. [00:07:36] Speaker 02: And you know, that's not unlike a football team. [00:07:39] Speaker 02: You know, a football team, I think we would all agree, is a team, and it's a team effort to get things done. [00:07:44] Speaker 02: And everybody in that team has an individual skill. [00:07:46] Speaker 02: They all work together, but they have independent jobs to do. [00:07:51] Speaker 06: And in fact, the board... A quarterback would not willingly say, I want to be in a bargaining unit with a tackle. [00:07:57] Speaker 06: Would not want to? [00:07:58] Speaker 06: No. [00:07:59] Speaker 06: They say, no, we're... I don't have any community of... larger community of interest. [00:08:03] Speaker 06: We're a very distinct group. [00:08:04] Speaker 06: We have to deliver the talent, but that's a big issue. [00:08:07] Speaker 06: I don't think they equate themselves. [00:08:12] Speaker 06: I mean there are just so many situations where people are working towards the same end, the crafts as you know. [00:08:18] Speaker 06: Electricians are not going to join up with the plumbers and they're building the same houses and they have to work with each other because the electrician can't come in until the plumbers are vice versa. [00:08:29] Speaker 06: I mean there's so many situations like [00:08:37] Speaker 06: great way to the initial community of interest. [00:08:40] Speaker 06: And don't we owe deference to the board's preference on that? [00:08:44] Speaker 02: You raise an important issue, and that is deference. [00:08:46] Speaker 02: How much deference should be given to the board in this situation? [00:08:50] Speaker 02: In fact, in your book, you have a nice section about giving deference to agencies and to courts. [00:08:56] Speaker 02: And I think of it as rungs of a ladder. [00:08:59] Speaker 02: And that is the highest level of deference, obviously, is a court to the court. [00:09:04] Speaker 02: The second level would be a court to an agency that applies the Administrative Procedure Act. [00:09:11] Speaker 02: And then further down that rung would be an agency that doesn't apply the Administrative Procedures Act. [00:09:16] Speaker 02: And then you go on down the line where you have an agency that uses administrative law judge, where you use the federal rules of evidence. [00:09:23] Speaker 02: But in this case, I don't think it deserves the same level of deference that the board claims it deserves, because you have a hearing officer who has said on the record, he's not going to make any credibility determination. [00:09:36] Speaker 02: He is not a lawyer and does not follow the rules of evidence and is not making a decision. [00:09:41] Speaker 02: That decision is then given to somebody else who didn't watch the witnesses, cannot determine credibility. [00:09:48] Speaker 02: So I don't think deference is inappropriate. [00:09:50] Speaker 02: The same level of deference that you would give to a court [00:09:52] Speaker 02: or give to even the board where an administrative law judge decides the case is appropriate. [00:10:00] Speaker 06: Does that answer your question? [00:10:02] Speaker 06: Yeah, I understand your argument. [00:10:02] Speaker 06: Thank you. [00:10:03] Speaker 06: Pardon? [00:10:03] Speaker 06: I understand your argument. [00:10:04] Speaker 06: Okay. [00:10:06] Speaker 02: Thank you. [00:10:06] Speaker 02: Some of the other things that, I guess some other statistics that are important in this particular case, is that 78% of these riggers performed non-rigor jobs. [00:10:20] Speaker 02: So once they finish their rigor jobs and they want to work the concert, they then move to another job. [00:10:26] Speaker 02: And just think of the difficulty it would be for an employer to administer that kind of situation of where you have a bargaining unit employee. [00:10:35] Speaker 02: He finishes his job. [00:10:37] Speaker 02: He then goes to a completely different job on the very same event, the same concert, the same corporate event, is not part of the bargaining unit. [00:10:47] Speaker 02: And then at the end of the show, he then goes back into the bargaining union. [00:10:51] Speaker 02: I can't think of any situation in my 34 years of practice where that has worked. [00:10:57] Speaker 02: And you gave the example of the construction industry, for example, the trades. [00:11:01] Speaker 02: Trades are typically union, and they typically have jurisdictional lines. [00:11:05] Speaker 02: But you don't have situations in the construction industry, typically, where they go from a union job to a non-union job back to a union job on the same premise or the same project. [00:11:17] Speaker 02: That's just something that is just not workable in the real world. [00:11:22] Speaker 05: When riggers do crew work, are they doing it on a voluntary basis? [00:11:27] Speaker 02: It's interesting. [00:11:28] Speaker 02: This type of work is everybody volunteers to sign up for work. [00:11:34] Speaker 02: So in other words, they're all on a call list. [00:11:37] Speaker 02: So when they get assigned as a rigor, they answer a call. [00:11:41] Speaker 02: And if they want to do lighting during the show, which is non-rigor work, they would answer a call and then on the rigor work on the loadout. [00:11:49] Speaker 02: Does that answer your question? [00:11:50] Speaker 02: So every job is voluntary. [00:11:53] Speaker 05: Well, if every job is voluntary. [00:11:57] Speaker 05: In other words, you hire me to do rigor work. [00:12:00] Speaker 01: Correct. [00:12:01] Speaker 05: And that's what I do. [00:12:04] Speaker 05: And if I feel good, I'll do some page-hand work, too. [00:12:08] Speaker 05: But if I don't want to, I won't. [00:12:10] Speaker 01: Correct. [00:12:11] Speaker 05: And there's nothing you can do about it, because you hired me as a reader. [00:12:15] Speaker 01: No, that's absolutely true. [00:12:16] Speaker 05: That's my point. [00:12:18] Speaker 05: I mean, it's a voluntary thing. [00:12:21] Speaker 02: It is voluntary. [00:12:22] Speaker 02: But for example, the board uses the Red Lobster case as an example of voluntary. [00:12:28] Speaker 02: And in that particular case, the employees had an eight-hour shift. [00:12:33] Speaker 02: But what they did is they moved, it was the choice between one store and another, but they've still had their eight hour shift. [00:12:41] Speaker 02: And in this particular case, it's different because it's the riggers who decide whether they want to work for my client, Rhino, or they want to work for another client, particularly in a large metropolitan area where you have multiple shows going on at one time. [00:12:55] Speaker 02: Because they have a choice of who they voluntarily work for. [00:12:59] Speaker 02: And then how long they want to work on any particular show. [00:13:04] Speaker 02: Does that make it? [00:13:09] Speaker 02: Some of the other issues I would like to point out is some of the factual [00:13:19] Speaker 02: misstatements that the board made. [00:13:22] Speaker 02: One of the important factors that this court has relied on as well as specialty healthcare is supervisors, who supervises the employees. [00:13:32] Speaker 02: And in the decision and direction of election by the regional director, [00:13:37] Speaker 02: The regional director stated the record reveals that all the employers and employees at each call except the riggers take direction from a show supervisor and crew chief. [00:13:49] Speaker 02: The riggers, in contrast, take direction from their own rigor supervisor. [00:13:54] Speaker 02: The record evidence in this case was just the opposite of that. [00:14:00] Speaker 02: The director of operations testified in response to a question to the hearing officer, how frequently would you say that Taylor and Taylor Alexander was a rigging manager? [00:14:12] Speaker 02: supervises non-rigors. [00:14:14] Speaker 02: She says it's a team effort. [00:14:16] Speaker 02: So he's always out in the job site watching and making sure the employees are doing what they're supposed to be doing. [00:14:21] Speaker 02: All employees, not just riggers. [00:14:24] Speaker 02: One specific that I can remember is Chambers Bay when they were doing a preview of the tents and he worked as a supervisor over all of the employees. [00:14:34] Speaker 02: She went on to say that the two show supervisors, Eric Durda and Dan Skolnick, are supervisors over all the employees, not just the stagehands. [00:14:44] Speaker 02: And the disputed testimony also says Mr. Alexander is responsible for all employees' safety when he's on the job. [00:14:53] Speaker 02: He's the safety person that watches over everyone. [00:14:57] Speaker 02: So again, if you go back and again, this requires a reading of the entire record, and when you read the entire record, you'll find that there's a number of misquotes of the record. [00:15:10] Speaker 02: And there's another issue had to do with integration. [00:15:12] Speaker 02: Obviously, integration of the employees is one of the key factors under Blue Man Vegas. [00:15:17] Speaker 02: And in the board's brief at page nine, they say lighting helps build the trust. [00:15:22] Speaker 02: But what they failed to talk about, and they also helped put on cable. [00:15:26] Speaker 02: So when these employees build the trust, the board would have us believe that the riggers come in, do their thing, nobody else is around them. [00:15:36] Speaker 02: and then everybody else comes in and everything magically gets done. [00:15:39] Speaker 02: That's not the way it works. [00:15:40] Speaker 02: You are in a very confined space, probably the length of this courtroom, working on a trust where they're working jointly to put lights on, they're putting speakers on, and then when everything is ready to go and the board focuses for some reason on motors, [00:15:55] Speaker 02: They think that's the one thing to distinguish rigors from everybody else is that when the trust is ready, then they take the trust and they bring it up. [00:16:02] Speaker 02: But it's a joint effort by stage hands to bring the motor to the stage, to unload the motors, to help attach the motors, to run cables to the motors. [00:16:12] Speaker 02: So it's truly a team effort. [00:16:14] Speaker 02: And even the board said in its brief is that they worked together [00:16:19] Speaker 02: But independently. [00:16:21] Speaker 02: So again, going back to your comment on the football, Judge Edwards, it is every position on the football team works independently. [00:16:30] Speaker 02: But in order to be successful, they have to work as a team. [00:16:34] Speaker 02: And that's really what our evidence showed in this particular case. [00:16:37] Speaker 06: Is it true? [00:16:41] Speaker 02: Yes, we did. [00:16:42] Speaker 06: I don't think the word's in there. [00:16:44] Speaker 02: Well, we talked about, I believe we talked about, the union relied on one witness. [00:16:51] Speaker 02: His name was Matt Klemish, who only worked 115 hours over a two-year period. [00:16:57] Speaker 06: No, no, no. [00:16:58] Speaker 06: I'm asking, did you raise the argument? [00:17:01] Speaker 02: I believe we did. [00:17:02] Speaker 02: I can't tell you the... OK. [00:17:03] Speaker 02: I can't point it. [00:17:05] Speaker 02: OK. [00:17:05] Speaker 02: Or it's in the reply. [00:17:07] Speaker 06: Well, that's late. [00:17:09] Speaker 02: Pardon? [00:17:09] Speaker 06: That's too late. [00:17:12] Speaker 06: I mean, I'm listening to you and I couldn't, I was perplexed. [00:17:15] Speaker 06: I don't remember any credibility argument being raised in your opening brief. [00:17:22] Speaker 02: I can't point to the particular record, but we're talking about an individual that testified that was a competitor that I believe we did mention, but I'll have to check. [00:17:31] Speaker 02: And again, on its face, when you have a competitor testifying against this employer, I think that testimony on its face cannot be credible. [00:17:44] Speaker 06: And it doesn't work very well. [00:17:47] Speaker 06: I understand. [00:17:52] Speaker 06: claim that there was a dispute on who supervised who, and there was a credibility finding to be made, and it wasn't properly made. [00:18:03] Speaker 06: I can't find that argument. [00:18:05] Speaker 02: I think we did. [00:18:06] Speaker 02: We certainly laid out the difference. [00:18:07] Speaker 02: And as I just quoted you, we laid out those in our brief clearly, where the decision in direction of elections had won. [00:18:15] Speaker 06: The question is whether you raised an issue on appeal and said you can't credit. [00:18:21] Speaker 06: Why don't we hear from the board? [00:18:29] Speaker 05: I'll let you come back. [00:18:30] Speaker 04: Okay. [00:18:40] Speaker 03: Good morning and thank you, Your Honor. [00:18:41] Speaker 03: May it please the Court, I'm Greg Lauro for the National Labor Relations Board, asking this Court to enforce the Board's order because it's finding that the rigored unit, constituted and appropriate unit, is supported by substantial evidence and consistent with applicable law. [00:18:58] Speaker 03: And my opponent acknowledges that they face a heavy burden in showing that this isn't even an appropriate unit because of an overwhelming community of interest between the included and excluded employees. [00:19:10] Speaker 03: And in the board's view, their attempts to meet that burden fails for two reasons. [00:19:15] Speaker 03: One is there is substantial evidence showing significant distinctions. [00:19:19] Speaker 03: between the riggers and the non-riggers, some of which were discussed this morning, that they do have some distinct job functions and some separation and supervision, widely divergent pay. [00:19:30] Speaker 03: And as was noted, they have special training such that the non-riggers cannot volunteer to do rigging work. [00:19:36] Speaker 03: And when you look at the widely divergent pay that riggers make $21 to $40 an hour and the non-riggers make, on average, $11 to $20, and often on the lower end of that range, [00:19:46] Speaker 03: I think it speaks to how the employer itself recognizes the special training and abilities of rigors and paying them so much more. [00:19:54] Speaker 03: And while my opponent may have a different view of the record, substantial evidence supports the board's finding. [00:19:59] Speaker 03: And while my opponent may be able to show, well, perhaps this other unit we want is also an appropriate unit that you could construct, an appropriate unit that way, that doesn't meet their burden of showing that this unit is truly inappropriate. [00:20:15] Speaker 03: And with that in mind, I invite any other questions for the court, but I think the board's finding that this is an appropriate unit. [00:20:20] Speaker 03: It is well supported and consistent with... So you're agreeing with them they could never meet their burden? [00:20:27] Speaker 03: Not at all. [00:20:28] Speaker 03: Not at all. [00:20:29] Speaker 03: In fact, [00:20:30] Speaker 03: Courts of Appeals in approving the specialty standard that we cite in our brief, I believe to page 51 and also 49, have already rejected this argument that the specialty healthcare standard in this second prong of overwhelming community of interest is unacceptable. [00:20:44] Speaker 03: That argument has been rejected, and in fact the board has found that the overwhelming community of interest standard has been met both before and after the implementation of specialty healthcare. [00:20:54] Speaker 06: The thrust of your argument is interesting. [00:20:57] Speaker 06: You're saying correctly that the law [00:21:00] Speaker 06: will prove a unit if it is appropriate. [00:21:04] Speaker 06: It doesn't have to be less. [00:21:07] Speaker 06: But if you follow that all the way through, if the first test, first part of the test is met, then there's no question that there is a unit that is appropriate. [00:21:23] Speaker 06: So the second part of the test essentially becomes irrelevant. [00:21:27] Speaker 06: The argument, the way you're arguing today, you're saying, look, all you have to do is [00:21:31] Speaker 06: Well your honor that that makes note that makes the test look pretty absurd because If you meet the first part of the test you're essentially saying you're done. [00:21:45] Speaker 06: There is no second part [00:21:46] Speaker 03: Not at all, Your Honor. [00:21:48] Speaker 03: And I apologize if I misspoke or said something confusing. [00:21:51] Speaker 03: But when I'm asked, how does the board determine whether there is an appropriate unit, I'm speaking of the whole two-part specialty health care framework. [00:21:59] Speaker 03: Yes, it's true. [00:22:00] Speaker 03: If the board applies the traditional community of interest factors, the one sanctioned by this court in Blue Man Vegas and every other court to address the issue, to assess, is this an appropriate unit? [00:22:10] Speaker 03: And if the answer is yes and someone challenges it, [00:22:13] Speaker 03: that party has a chance to prove it's their burden, that there's such an overwhelming community of interest between the excluded and the included employees, that you can't even have an appropriate unit without adding them. [00:22:23] Speaker 03: And I'm just saying they failed to meet that burden. [00:22:27] Speaker 03: I apologize if I was confusing it. [00:22:29] Speaker 03: I'm just saying courts. [00:22:31] Speaker 01: I take it your view is that just because a group of employees has a community of interest, [00:22:38] Speaker 01: thereby satisfying the first prong of the test, that doesn't mean it's an appropriate unit. [00:22:43] Speaker 01: Because it might still be an inappropriate unit if there were no sound basis for excluding other employees. [00:22:50] Speaker 03: Right. [00:22:50] Speaker 03: Your honor is correct. [00:22:51] Speaker 03: As this court said in Blue Man Vegas, there are multiple potential appropriate units. [00:22:56] Speaker 03: And the fact you can point to another one doesn't mean that the unit the board had here that is an appropriate unit is suddenly inappropriate. [00:23:03] Speaker 03: And I think my opponent sometimes forgets that. [00:23:06] Speaker 01: But I think what we're asking about is the converse situation, which is that just because there's a community of interest among a group of employees doesn't mean that that's an appropriate unit. [00:23:18] Speaker 01: Do you disagree with that? [00:23:19] Speaker 03: I don't think I disagree with that. [00:23:20] Speaker 03: I want to make sure I understand what you're saying. [00:23:22] Speaker 03: I acknowledge that the fact that you find an appropriate unit at the first step isn't the end of analysis if a party... No, you find a community of interest at the first step. [00:23:33] Speaker 03: Well, the community of interest is the test, which this court has also approved for determining whether it's an appropriate unit on the first step. [00:23:41] Speaker 03: No, I apologize. [00:23:42] Speaker 03: I want to answer your question. [00:23:44] Speaker 03: I'm sorry if I misunderstood. [00:23:45] Speaker 03: But something I do want to say is I recognize my opponent paints a nice picture that was discussed this morning about teamwork and working together. [00:23:54] Speaker 03: And I'm sure that's true. [00:23:55] Speaker 03: There's some functional integration at a high level. [00:23:58] Speaker 03: But they paint with too broad a brush. [00:24:00] Speaker 03: And they obscure the distinctions the board reasonably relied on here, supported by the record, to find that the rigors-only unit was an appropriate unit. [00:24:08] Speaker 03: And we've discussed the differences, and some of them are stark, whether it's widely divergent wages or the fact that the rigor's training is so different and specialized enough so that non-rigors can't before it can work. [00:24:19] Speaker 03: These kind of factors and all the others that were discussed, some evidence of separate supervision, [00:24:25] Speaker 03: do support finding that the separate unit is appropriate and that the burden of showing an overwhelming community of interest that you had an almost total overlap, to use this court's words at Lumen Vegas, that that standard isn't met. [00:24:40] Speaker 03: And as you know from our brief, we're talking about a test here, a specialty health care that was an overwhelming community of interest test, I should say, that has been approved by this court previously in Blue Man, Vegas, adopted by this court in specialty health care, and then approved by every circuit to address the issue. [00:24:56] Speaker 03: And there are now several. [00:24:58] Speaker 05: Thank you. [00:24:59] Speaker 05: Why don't we hear from the interviewee? [00:25:01] Speaker 03: Thank you, Your Honor. [00:25:07] Speaker 04: Good morning, Your Honor. [00:25:09] Speaker 04: May it please the Court, my name is Demetri Glitzen, representing Local 15 of the International Alliance of Theatrical Stage Employees. [00:25:17] Speaker 04: I want to talk to you today about two things. [00:25:19] Speaker 04: First, the record below actually establishes that the [00:25:24] Speaker 04: job involved here is actually much less integrated and much less of a team than the football team. [00:25:31] Speaker 04: And in fact, at least in Seattle with the Seahawks, we like to think of the Seahawks as being much more egalitarian than the stagehands and riggers workplace. [00:25:41] Speaker 04: at the right of workplace, and the record amply supports these conclusions. [00:25:46] Speaker 04: And frankly, almost all of the issues raised below were undisputed. [00:25:49] Speaker 04: The only thing actually that actually dispute was whether Mr. Alexander supervised only the riggers most of the time. [00:25:56] Speaker 04: And there was plenty of evidence to support the regent's conclusion that he does. [00:26:00] Speaker 04: But it's a highly stratified workplace with stagehands at the bottom and riggers at the top, literally at the top up in the ropes, in the rigging, [00:26:10] Speaker 04: using shackles, steel cables, motors, chains, and pulleys to hang equipment. [00:26:17] Speaker 04: It is dangerous work compared to the work of the state. [00:26:19] Speaker 04: And Heidi Gonzalez, one of the rigors who testified, pages 401 in the transcript, talked about the many risks rigors face, a risk of falling. [00:26:29] Speaker 04: a risk of dropping something, a risk of hanging something improperly, and a risk of personal liability if they make a mistake at their job, which they are all told in training, that if somebody gets hurt because of their work as a rigger, they personally can get sued. [00:26:47] Speaker 04: As a result of the risks and specialized skills involved in doing the rigging, they have to have significant specialized training, fall protection, rigging training, they have their own certification. [00:26:59] Speaker 04: They are doing work that stagehands are categorically not allowed to do, and Rhino's CEO testified to that at page 128 in the transcript. [00:27:09] Speaker 04: Only riggers are allowed to touch the equipment. [00:27:12] Speaker 04: Only riggers are allowed to do the rigging. [00:27:15] Speaker 04: And because of the nature of this work, riggers are hired from a specialized workforce. [00:27:20] Speaker 04: They are not hired off the street. [00:27:21] Speaker 04: There are highly qualified, trained riggers that come in and do this work. [00:27:26] Speaker 04: As a result of all of these differences, the riggers, as we've seen, and it's not disputed, are highly compensated, more perhaps even than a quarterback is over a guard going offensive tackle. [00:27:37] Speaker 04: the rigors getting between $21, $40 an hour. [00:27:40] Speaker 04: Stagehands, we heard 11 to 20, but the employer's witness testified the vast majority of stagehands are getting much closer to $11 an hour than 20. [00:27:49] Speaker 04: So that's the rigors at the top. [00:27:51] Speaker 04: At the bottom, by contrast, the stagehands performing [00:27:55] Speaker 04: un-skilled labor with no experience required, it's manual labor, and unsurprisingly, paid minimum wage or very low wages. [00:28:04] Speaker 04: So if the question is, as it is, did the board rule correctly that the employer did not meet its burden of establishing an overwhelming community of interest between the stagehands and the riggers, such that there is no legitimate basis to exclude stagehands from a unit of riggers, the answer is absolutely. [00:28:24] Speaker 04: The writer's attorney suggests at a more philosophical level that the problem with the specialized health care rule is that if the first test is met, that there is a community of interest among riggers, then the second test is always met, that there is not an overwhelming community of interest. [00:28:43] Speaker 04: That's not true. [00:28:44] Speaker 04: Even in specialty health care, the court cited to the Wheeling gaming case [00:28:50] Speaker 04: where, which found that while poker dealers [00:28:56] Speaker 04: shared a community of interest amongst themselves, the other employees at the casino shared such an overwhelming community of interest with them that the unit was not appropriate. [00:29:06] Speaker 04: And immediately after specialized health care, you had the Anduala case that held that it was improper to exclude merchandisers from a group of other employees, even though those employees had a community of interest. [00:29:16] Speaker 04: In fact, on page 31 of the employer's briefing, it cites three board decisions. [00:29:20] Speaker 04: that all the first test was met, the community of interest among the petitioned for unit, the second test, the employer met its burden. [00:29:29] Speaker 04: And it's also is a philosophical error or practical error. [00:29:32] Speaker 04: Because last night, on a LARC, I found six different regional director decisions [00:29:38] Speaker 04: finding that a petition for a unit met the first test, that there was a community of interest, but the employer met its burden on the second test and the petition for a unit was therefore not appropriate. [00:29:50] Speaker 04: But what happens when a union petitions for a unit and the region says that's not the proper unit, these other workers have to be included, [00:29:58] Speaker 04: either the union goes forward with an election with the larger unit, or they give up. [00:30:03] Speaker 04: It's very rare for practical economic reasons that those cases go up in appeal. [00:30:08] Speaker 04: So it's simply not a basis to critique the specialized healthcare or Blue Man Vegas test as somehow being illusory. [00:30:19] Speaker 04: there. [00:30:20] Speaker 04: One of the thing I want to leave you with is that there's a suggestion that, as in the NLRB versus Tito decision, that the board simply rubber stamped a regional director decision, the regional director simply rubber stamped the petition. [00:30:33] Speaker 04: That is not true. [00:30:35] Speaker 04: I've identified the many factors [00:30:37] Speaker 04: that indicate that riggers do have their own strong, separate identity, community of interest, wages, training, danger, and so forth. [00:30:46] Speaker 04: But the regional director also addressed the arguments that tend to cut the other direction. [00:30:52] Speaker 04: There are serious arguments that were raised below about functional integration, [00:30:57] Speaker 04: and interchange. [00:30:59] Speaker 04: With functional integration, however, the regional director applied well-established board law that the fact that you're all working together as a team is not functional integration, such as to create an overwhelming team of interest if you're each doing your own role, which rigors clearly are. [00:31:16] Speaker 04: With interchange, the point is you get hired as Judge Rogers was indicating. [00:31:19] Speaker 04: You get hired as a rigger. [00:31:21] Speaker 04: You worked as a rigger. [00:31:22] Speaker 04: In fact, you get hired as a rigger for a four-hour shift. [00:31:25] Speaker 04: The record is undisputed. [00:31:26] Speaker 04: If you finish your rigging in two and a half or three hours, you can go home with full pay, something that never happens to a stagehand. [00:31:35] Speaker 04: There are times, because rigging is intermittent work, if there's not enough work as a rigger to pay your bills, then a rigger would volunteer to work a shift as a stagehand. [00:31:46] Speaker 04: But following well-established board law, we find that voluntary, one way, [00:31:52] Speaker 04: assumption of work of one type, in this case, stagehand work, by riggers, where stagehands can never work as riggers and riggers are never forced to work as stagehands, doesn't meet the board standard of the kind of interchange that would weigh heavily in favor of a finding of an overwhelming community of interest. [00:32:10] Speaker 04: So the important thing is that the regional director evaluated all of the evidence and all of the legal arguments, both in favor and against the existence of an overwhelming community of interest. [00:32:22] Speaker 04: The board affirmed the regional director's decision. [00:32:25] Speaker 04: It's well established, well supported by the evidence. [00:32:28] Speaker 04: So we don't have a situation where somehow no reason decision was made below, and therefore the proper deference, which the cases indicate is appropriate, should be given to the board's decision affirming the regional director's conclusions, which were not credibility-based conclusions, but based on really the undisputed evidence before the regional director. [00:32:50] Speaker 05: Thank you. [00:32:50] Speaker 04: Any other questions? [00:32:52] Speaker 05: Thank you. [00:32:53] Speaker 04: Thank you all. [00:32:59] Speaker 05: All right. [00:32:59] Speaker 05: Council for Petition. [00:33:00] Speaker 05: Thank you. [00:33:02] Speaker 02: In Sundor Brands, which this court decided in 1999, stated as, if any one of the six community of interest factors relied on by the regional director, [00:33:14] Speaker 02: is unsupported by evidence in the record, the board must reconsider the unit determination. [00:33:21] Speaker 02: And then in Tentaco, also in Tito case, the obligation of the reviewing court is to assess the whole record. [00:33:31] Speaker 02: meaning our analysis must consider not only evidence supporting the board's decision, but also whatever in the record fairly detracts from its weight. [00:33:43] Speaker 02: And that's what the regional director failed to do in this case. [00:33:46] Speaker 02: He did not consider a significant part of the employer's evidence in determining the eight factors of community of interest. [00:33:56] Speaker 02: Both counsel for the union as well as counsel for the general counsel talked about wages. [00:34:03] Speaker 02: In Blue Man Vegas, the standard that this court set out was the method of wages. [00:34:09] Speaker 02: In that case, it had to do with musical technicians or MITs. [00:34:13] Speaker 02: It specifically talked about stagehands being hourly and the MITs being salaried. [00:34:19] Speaker 02: So again, in our particular case, yes, there is a wage difference like there is under many, many, if not all collective bargaining agreements, there is a wage differential. [00:34:29] Speaker 02: But that's not the test under Blue Man Vegas. [00:34:31] Speaker 02: It is the method of payment. [00:34:33] Speaker 02: The hours of work, Council for the Union said, everybody has a four-hour call. [00:34:39] Speaker 02: Yes, some can leave early if they're done, but they all get paid the same. [00:34:42] Speaker 02: They all get paid their four hours. [00:34:44] Speaker 02: The benefits are absolutely identical, and the regional director never addressed that issue. [00:34:50] Speaker 02: Supervision, we talked about already and gave you some examples where, in fact, the regional director did not even correctly quote the record. [00:34:58] Speaker 02: We are conceding, obviously, the training skills are different between the riggers and the stagehands. [00:35:03] Speaker 02: But remember, some of those stagehand includes high rope people who also have to get up in their actors, also have to have fall protection, also have to have special skills. [00:35:12] Speaker 02: So it's not just people who are moving boxes that we're talking about. [00:35:16] Speaker 02: We're talking about electricians that are part of the stagehand group. [00:35:19] Speaker 02: We're talking about forklift drivers that require certification. [00:35:23] Speaker 02: We're not just talking about laborers here. [00:35:25] Speaker 02: We're talking about everybody else that puts on a concert, other than the riggers. [00:35:29] Speaker 02: And as far as the contact with employees, you're in a very small area in which they're trying to get a show put on. [00:35:37] Speaker 02: And there is constant contact with these employees. [00:35:41] Speaker 02: They cannot be separate. [00:35:42] Speaker 02: It's not like a factory or like in the FedEx case where you have the warehouse people and the drivers where there might be a very small interchange. [00:35:49] Speaker 02: They are all working in tandem together to put the show on on time. [00:35:55] Speaker 02: And of course, we talked about functional integration. [00:35:57] Speaker 02: 78% of the riggers perform non-rigor work. [00:36:00] Speaker 02: And then we talked about the industry standard, again, which neither counsel addressed in this particular case. [00:36:05] Speaker 02: I know it's not dispositive, but it's certainly one of those eight factors that this court is relying on. [00:36:11] Speaker 02: So with that in mind, I would ask this court at a minimum to remand this case to the regional director and follow the directions of this court. [00:36:23] Speaker 02: And that is considered the entire record before making his decision as to what the appropriate unit is, as well as determining whether or not the employer met the overwhelming standard that's set out in specialty health care, as well as Blue Man Vegas. [00:36:39] Speaker 02: Thank you. [00:36:40] Speaker 05: We'll take the case under advice.