[00:00:02] Speaker 01:
Case number 15-1412 at L. Soko Mas of Sausalito, LLC.

[00:00:07] Speaker 01:
Petitioner versus National Labor Relations Board.

[00:00:10] Speaker 01:
That's the key for the petitioner.

[00:00:11] Speaker 01:
Ms.

[00:00:12] Speaker 01:
Beard for the respondent.

[00:00:29] Speaker 04:
Good morning, Your Honors Diane.

[00:00:31] Speaker 00:
Let's wait until the courtroom clears.

[00:00:40] Speaker 00:
Sure.

[00:00:41] Speaker 00:
All right.

[00:00:41] Speaker 00:
Go ahead.

[00:00:42] Speaker 04:
Good morning, Your Honors Diane.

[00:00:44] Speaker 04:
A key for the Petition of Scomas of Sausalito.

[00:00:48] Speaker 04:
May it please the court.

[00:00:51] Speaker 04:
The deference that this court grants to board decisions is not unlimited.

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Where the board has acted arbitrarily and capriciously and in such a way that thwarts the underlying principles of the National Labor Relations Act, this court is empowered to step in.

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I ask you to do so here.

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In this case, the board mechanically applied the holding in levits and disregarded relevant surrounding factors.

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This is the very definition of capriciousness.

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A brief timeline of the incidences.

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On October 28, 2013, the employer received a decertification petition signed by the majority of the bargaining unit.

[00:01:37] Speaker 00:
Let me interrupt you, because I think we all know the facts.

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The owner's testimony is not complete in the record.

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Was he asked on direct or on cross or did he volunteer?

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What he would have done if he had known of the six defectors that he would have, instead of decertifying, would have called for an election?

[00:02:03] Speaker 04:
No, Your Honor, that was not in the record.

[00:02:06] Speaker 00:
He was not asked that.

[00:02:08] Speaker 00:
He was not.

[00:02:09] Speaker 04:
Okay.

[00:02:09] Speaker 04:
Correct, Your Honor, but I believe that we can infer from the record that if he had been notified of the reacquired majority support that he would not have withdrawn recognition primarily because the employees had actually filed that decertification petition and an election was going to be held anyway.

[00:02:29] Speaker 04:
So if we had been notified that the union had reacquired support, we wouldn't have acted the way that we had acted.

[00:02:38] Speaker 00:
Right.

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And as I remember, he also checked all the signatures to make sure that the decertification petition, at least what he had in front of him, was valid.

[00:02:47] Speaker 04:
Yes, Your Honor, he did.

[00:02:49] Speaker 04:
And that is one of the issues that's before the court, that an employer who has the absolutely best objective evidence in his hands, the best objective evidence that the Levitt's case discussed, if an employer acts on that evidence and has no information otherwise that the union has acquired majority support,

[00:03:11] Speaker 04:
Why would the board not take that factor into consideration?

[00:03:17] Speaker 02:
On the remedy or what?

[00:03:18] Speaker 02:
You're not contesting Levitz.

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Levitz is the law.

[00:03:23] Speaker 04:
You're right, Your Honor.

[00:03:24] Speaker 04:
I'm not contesting Levitz.

[00:03:25] Speaker 02:
What I'm contesting... And so Levitz says the employer acts on its peril.

[00:03:29] Speaker 04:
Your Honor, with all due respect, any rule of law that says the employer acts at its peril is necessarily arbitrary and capricious.

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How can an employer... How can it be necessarily at the employer... Let me finish.

[00:03:41] Speaker 02:
You don't know what my question is going to be.

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If part of that contemplates the employer has the option to just file for a petition for an election,

[00:03:51] Speaker 04:
Your Honor, in this particular case, what the employer had in front of him was 100% objective evidence that the union had lost majority support.

[00:04:02] Speaker 04:
There was no reason for the employer to actually file an RM petition for an election.

[00:04:07] Speaker 04:
Number one, the employees had already filed a decertification petition, so an election was actually in the future.

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Number two, an RM petition is not an effective

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method of getting an election if the union still has the option of filing a blocking charge.

[00:04:27] Speaker 02:
I'm not following that at all.

[00:04:29] Speaker 04:
Well, and to respond to what you said, I am not asking that Levitz be overturned.

[00:04:37] Speaker 04:
What I'm asking is that applying a strict mechanical application of Levitz to the facts in this case, where the employer had absolutely no- So you're saying that what we really should focus on here is the remedy, that is, the bargaining order remedy.

[00:04:54] Speaker 04:
No, I'm not.

[00:04:55] Speaker 04:
I'm not saying that.

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And I would like to get to the remedy.

[00:04:59] Speaker 04:
You're not saying that?

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I beg your pardon?

[00:05:01] Speaker 02:
You're not saying that?

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What are you saying?

[00:05:02] Speaker 04:
Well, I'm not saying that right now.

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In my brief, I am saying that.

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The effectiveness of the remedy of a bargaining order is not appropriate in this case.

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And I believe that the board did not go through the three factors in the Vince of Plastics case.

[00:05:18] Speaker 02:
OK, but wait.

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Go back.

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What else are you saying?

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I'm not down with all of you.

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I am saying that the- Levitz, you agree.

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Levitz is the law.

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I agree that Levitz is a law.

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We can't change Levitz.

[00:05:27] Speaker 04:
I'm not asking you to change Levitz.

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I'm asking you to find that the strict application of Levitz to the facts in this case and the specific fact in this case is that the employer did not have before him.

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That goes to the remedy.

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The strict application in this case means you're fighting about the remedy that the board chose.

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You say you're not fighting Levitz.

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So the board has the employer committed an unlawful act.

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What you're really quibbling over is, but in the circumstances of this case, it was unfair for the board to issue a bargaining order.

[00:06:03] Speaker 02:
It seems, you know, you certainly have an argument there, and I'll be interested to hear what the board has to say.

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But you can't have it both ways.

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If you say Levitz is the law, and you agree, and you're not trying to challenge that,

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But when you say strict application, all that means to me is the remedy that they chose to deal with the Levitt's violation was inappropriate, maybe.

[00:06:24] Speaker 04:
Well, I certainly agree that the remedy they chose was inappropriate.

[00:06:28] Speaker 02:
What was your line of argument that makes no sense to me?

[00:06:31] Speaker 04:
Well, Your Honor, I believe that when the board does not take into a factor that the employer had absolutely no information.

[00:06:41] Speaker 02:
That's changing levits.

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You can't have it both ways.

[00:06:45] Speaker 00:
Well, let me ask you this.

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You've got at least one ALJ in Johnson Controls, which is before the board now, and I don't think they've acted on it.

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And the ALJ says, at your peril does not mean a game of gotcha.

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And that's what you're asking us to do is to construe at its peril or his peril or whatever peril does not mean that a union can

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hide its hand and then say, we've got you on this.

[00:07:17] Speaker 00:
Isn't that basically what you're arguing?

[00:07:19] Speaker 00:
That is exactly what I'm saying.

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Which is a remedy question.

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It's a construction of Levitz.

[00:07:26] Speaker 00:
Yes, Your Honor.

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So that there is no ULP here is your position.

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That is my position.

[00:07:33] Speaker 02:
But then you really are not consistent in what you're arguing.

[00:07:37] Speaker 02:
You say you're not challenging Levitt.

[00:07:39] Speaker 02:
Levitt says technically it's a violation.

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And wait, let me finish.

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That's what it says.

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And you're saying we're not challenging.

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We agree.

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I do understand when you follow through and say, OK, it's a technical violation.

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But it's a gotcha violation, and the remedy should not be a bargaining order.

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That may make sense, because that piece of it is not corrupting Levitts.

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But you can, on the one hand, say, I'm not challenging Levitts, which says you violated.

[00:08:07] Speaker 02:
Too bad.

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But you can say the remedy that was afforded here, or granted, is inappropriate, given the circumstances.

[00:08:14] Speaker 04:
Well, Your Honor, in Levitz, the court did say that it would be a totally different case if the union had not provided to the employer evidence of reacquired majority support.

[00:08:29] Speaker 04:
So it's not that I agree with most of the holding in Levitt's, but applying the holding to Levitt's to the facts of this case, where the union did not provide the employer with this evidence, is arbitrary and capricious.

[00:08:44] Speaker 02:
And if Levitt says that the rule doesn't cover that situation, is that what Levitt says?

[00:08:49] Speaker 02:
No.

[00:08:49] Speaker 04:
No, Levitt doesn't say that.

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But Levitt does say that this would be a better, that it would be a different situation had the union not- Which might affect the remedy.

[00:09:00] Speaker 04:
Well, I would like to move on to the actual issue where the board issued a bargaining order.

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In this particular case, the employer really did nothing wrong, and the remedy of a bargaining order is not appropriate.

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I think it's important to remember that this case did rise within the context of employees bringing about a decertification petition.

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There is absolutely no evidence in the record of any type of unfair labor practice

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committed by the employer other than this alleged unilateral withdrawal.

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There existed a clear showing of employee dissatisfaction with the union, and I really believe that a board election would be the most appropriate remedy to effectuate the purposes of the Act.

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The remedy of a bargaining order in these particular circumstances

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is not the one that is best suited to... It's hard to fathom.

[00:10:05] Speaker 04:
It is hard to fathom, Your Honor.

[00:10:06] Speaker 02:
So that's fine.

[00:10:06] Speaker 02:
That's a perfectly plausible argument.

[00:10:11] Speaker 04:
And the other thing is that there absolutely is no need to impose the order to deter the company from further efforts to undermine the union, because that's not what happened in this case.

[00:10:21] Speaker 02:
Well, the sad news in these cases is we would waste all this time, and it could have been done promptly.

[00:10:24] Speaker 02:
It's so silly.

[00:10:27] Speaker 02:
Yes.

[00:10:28] Speaker 04:
In this particular case, Your Honor, it's been approximately three and a half years.

[00:10:35] Speaker 04:
And I would ask, number one, I would ask the court to find that the initial order of the board is arbitrary.

[00:10:42] Speaker 04:
I beg your pardon?

[00:10:43] Speaker 05:
We don't make findings.

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You said you wanted to define something.

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The trial force might find it.

[00:10:49] Speaker 04:
I'm sorry.

[00:10:49] Speaker 05:
Findings are answers to factual questions.

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We don't make findings.

[00:10:53] Speaker 05:
Oh, I'm sorry.

[00:10:54] Speaker 04:
I'm sorry, Your Honor.

[00:10:56] Speaker 04:
I misspoke, Your Honor.

[00:10:59] Speaker 04:
I would ask that you decline to enforce the board's order or, in the alternative, remand it to the board for further analysis as to the appropriateness of the bargaining order.

[00:11:13] Speaker 04:
Thank you.

[00:11:14] Speaker 00:
Ms.

[00:11:16] Speaker 00:
Beard.

[00:11:24] Speaker 00:
Just so I don't forget it, where is Johnson Controls now?

[00:11:30] Speaker 03:
I, like yourself, took a look at that case.

[00:11:31] Speaker 03:
And I do not think that it is currently.

[00:11:35] Speaker 03:
I could not find it on Westlaw.

[00:11:36] Speaker 03:
I'm not sure if it is before the board still or if the case is settled or what stage it's in process-wise.

[00:11:44] Speaker 03:
Good morning.

[00:11:44] Speaker 03:
I'm Heather Beard for the Labor Board.

[00:11:46] Speaker 03:
First thing that I would like to do is to talk about what you all talked about with my opponent, which is a lot of speculation about what would have happened had the company not withdrawn.

[00:11:57] Speaker 05:
Let's jump to the remedy that the board has put in here.

[00:12:01] Speaker 05:
You rely on Vincent Controls in trying to defend this bargaining order, right?

[00:12:08] Speaker 03:
The board has said that, yes.

[00:12:10] Speaker 05:
Vincent Plastics, I'm sorry.

[00:12:11] Speaker 05:
Vincent Industrial Plastics.

[00:12:12] Speaker 03:
Yes.

[00:12:13] Speaker 05:
Yeah.

[00:12:14] Speaker 05:
Now, have you read?

[00:12:22] Speaker 05:
the the the the the

[00:12:41] Speaker 03:
Well, the board has traditionally held in many cases and continues to hold that whenever there's a withdrawal of recognition and there's an affirmative bargaining order, the affirmative bargaining order is the traditional remedy.

[00:12:58] Speaker 05:
How many times have we reversed the bargaining order?

[00:13:04] Speaker 05:
Can you remind us of one of them right here in Vincent?

[00:13:07] Speaker 03:
Your Honor, respectfully, that that's why the board said it was considering the factors in Vincent industrial plastics.

[00:13:13] Speaker 05:
Yes, we have here what is a technical violation where the union set on its hand.

[00:13:25] Speaker 05:
And you're saying that this is, if anything, this is a weaker case than Vincent was.

[00:13:30] Speaker 05:
And in Vincent, we didn't have any trouble saying the board improperly granted the burden.

[00:13:34] Speaker 03:
Your honor, what I respectfully disagree with is that this was a technical violation.

[00:13:40] Speaker 05:
The board- Okay, okay, it's a violation.

[00:13:43] Speaker 05:
Let me say it's a violation.

[00:13:44] Speaker 05:
We still have told you that the ordinary remedy is not emergency.

[00:13:49] Speaker 03:
It's an extraordinary remedy.

[00:13:50] Speaker 03:
But if the board considers, which the board did do here, the three factors- And it comes down to the result that doesn't follow from those three factors.

[00:13:58] Speaker 03:
Here, your honor, I would agree that the employees have been placed in a bad position with regard to getting their certified choice.

[00:14:07] Speaker 05:
Hold on just a minute.

[00:14:07] Speaker 05:
Hold on just a minute.

[00:14:09] Speaker 05:
Now, if you didn't or did not issue the bargaining order, they would nonetheless have issued a cease and desist order, right?

[00:14:15] Speaker 05:
That is correct.

[00:14:16] Speaker 05:
In respect to any unfair labor practice, right?

[00:14:18] Speaker 03:
That is correct.

[00:14:19] Speaker 05:
So what is accomplished by the use of the bargaining order rather than cease and desist?

[00:14:25] Speaker 03:
Thank you, your honor.

[00:14:26] Speaker 03:
What is accomplished is that the taint of the unlawful withdrawal of recognition, which took the bargaining representation away when there had not been an actual loss of majority status of the union, that undermines significantly.

[00:14:42] Speaker 05:
And the board has found repeatedly that... What changes is that the

[00:14:45] Speaker 05:
employees can no longer ask for a change in their representation, right?

[00:14:50] Speaker 05:
If there's a bargaining order?

[00:14:52] Speaker 03:
Right, with a bargain for a reasonable period of time.

[00:14:56] Speaker 03:
They can bargain for a reasonable period of time, and then they're on us.

[00:14:59] Speaker 05:
Well, Counsel, will you try to... I got bad press this week telling one lawyer that we get to interrupt the lawyers.

[00:15:05] Speaker 05:
They don't get to interrupt us.

[00:15:08] Speaker 05:
I apologize.

[00:15:08] Speaker 03:
Yes, I apologize.

[00:15:10] Speaker 05:
But the thing that changes is that the employees cannot.

[00:15:14] Speaker 05:
to get a change in their identity.

[00:15:18] Speaker 05:
The illness of this bargaining order really falls on the employees rather than on the employers.

[00:15:27] Speaker 03:
I would argue that that is not the case.

[00:15:29] Speaker 05:
The onus of making a sensible argument that is not the case.

[00:15:33] Speaker 03:
The employees never

[00:15:37] Speaker 03:
did not wish to be represented by the union in this case.

[00:15:41] Speaker 03:
They never lost the union.

[00:15:42] Speaker 05:
How do you know that the employees will not wish to do so during the period of the bargaining?

[00:15:49] Speaker 03:
That is something different.

[00:15:50] Speaker 03:
They may.

[00:15:51] Speaker 03:
That is correct.

[00:15:51] Speaker 03:
During the course of bargaining for a reasonable period of time, which is what the board said in analyzing the factors it did for the bargaining.

[00:16:01] Speaker 05:
How is the conduct of the employer any more constrained

[00:16:05] Speaker 05:
by the bargaining order than it is by the season decision?

[00:16:09] Speaker 03:
Because with a bargaining order, the employer has not been bargaining with the union.

[00:16:16] Speaker 03:
And therefore, the union, the employees who never lost, the union that never lost the support of the employees, the employees now are unable to be bargaining with the employer through their selected representative and with the order.

[00:16:28] Speaker 05:
Under the season decision.

[00:16:30] Speaker 05:
Under the season decision.

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employer be constrained to engage in good faith work?

[00:16:40] Speaker 05:
Your unfair labor practices, they refuse to work, right?

[00:16:44] Speaker 03:
Can you repeat that, Your Honor?

[00:16:46] Speaker 05:
Would it not be an unfair labor practice for the employer to refuse to argue in the face of the cease and desist?

[00:16:53] Speaker 03:
If there was the cease and desist order, the only thing, right now there is no recognition of the union.

[00:17:01] Speaker 03:
So no, that is why an affirmative bargaining order is necessary in order for there to be an un... I thought the union was already recognized before this event occurred.

[00:17:09] Speaker 03:
The union was recognized, but the employer stopped doing that once it withdrew recognition.

[00:17:13] Speaker 05:
So right now, the union, the board has said that the recognition was improperly withdrawn.

[00:17:20] Speaker 05:
The cease and desist order would take care of that, would it not?

[00:17:24] Speaker 03:
No, and that's what the board said in the judge's opinion, that the board upheld the order.

[00:17:29] Speaker 03:
A cease and desist order does not give the benefit back to the union of having the support.

[00:17:35] Speaker 02:
Then you'd never lose a bargaining order case.

[00:17:38] Speaker 02:
The problem is, you know exactly what you're running up against.

[00:17:41] Speaker 02:
We've gone through that in the circuit, whatever I may have thought about it in the years, but the law in the circuit not implicitly, explicitly rejects that.

[00:17:49] Speaker 02:
And so you really haven't given consideration to the third factor, that cease and desist order would be adequate to remedy.

[00:17:58] Speaker 02:
I mean, the ALJ's analysis on that was weak, to say the least, and the board's adoption of it

[00:18:05] Speaker 02:
This doesn't explain why so in this kind of a case where the employer didn't do anything wrong when it initially acted.

[00:18:12] Speaker 02:
Just wait.

[00:18:13] Speaker 02:
We can't ignore that.

[00:18:14] Speaker 02:
The employer did nothing wrong.

[00:18:17] Speaker 02:
The employer got a majority list, checked it, verified it clean, didn't say any nasty things about the union, and said, I'm withdrawing recognition.

[00:18:26] Speaker 02:
The union then held the information they now want to win on.

[00:18:29] Speaker 02:
Well, you know what?

[00:18:31] Speaker 02:
That's a different situation, and we can take that into account or say to the board, you have to take that into account here, because it makes no sense.

[00:18:39] Speaker 02:
Because otherwise, it's just a gotcha game.

[00:18:41] Speaker 02:
And you could have remedied it quickly if the people at the regional level had gotten it and said, well, have a new election, be done with this.

[00:18:50] Speaker 02:
That's the way to handle this kind of case.

[00:18:52] Speaker 02:
With three years later fooling around with this, you just say, as soon as the ULP is filed, as soon as you start, have another election.

[00:19:00] Speaker 02:
End of discussion.

[00:19:02] Speaker 02:
or have an election.

[00:19:06] Speaker 03:
May I respond, Your Honor?

[00:19:07] Speaker 03:
Sure.

[00:19:10] Speaker 03:
I first would like to respond to the bargaining order comment you made about the third factor, and that in this instance, a cease and desist order alone, that the board's analysis on that is weak.

[00:19:18] Speaker 03:
I would respectfully disagree, say that as I was explaining earlier, in this sort of a case, which does not have a technical violation, there is an unfair labor practice violation, Levitt said that the harm of

[00:19:30] Speaker 02:
I totally take technical out, but just so you understand, as human judges, it looks more technical than other cases where the employer's really beating the daylights out of the union, saying nasty things, et cetera.

[00:19:42] Speaker 02:
The employer here did what the employer was entitled to do.

[00:19:46] Speaker 02:
So the cause of the problem was not the employer.

[00:19:49] Speaker 02:
The cause of the problem were the employees who you say need to be protected.

[00:19:53] Speaker 02:
They gave inconsistent messages.

[00:19:56] Speaker 02:
The employer acted on a perfectly fair message, received, and then never got a counter message.

[00:20:03] Speaker 02:
And then is later told, you know what, incidentally, when we never told you anything, you were violating the law.

[00:20:09] Speaker 02:
Judges take that into account, especially when you then end up with what's the appropriate remedy in that circumstance.

[00:20:16] Speaker 02:
And it's hard for us to fathom how the appropriate remedy in that circumstance can be, you must bargain.

[00:20:21] Speaker 02:
That makes no sense.

[00:20:23] Speaker 03:
Well the board would respectfully disagree and that when the employer did withdraw recognition here what you call a technical violation don't call it technical violation okay when the employer did that it did it as Levitt said always regardless of if it has

[00:20:39] Speaker 03:
it does it at its peril.

[00:20:44] Speaker 03:
And when that happens, it did cause the union and the employees to lose the relationship that they were entitled to and that Levitz is protecting.

[00:20:52] Speaker 05:
And there is the best explanation in the board's opinion.

[00:20:56] Speaker 05:
of why the bargaining order is required, why this is an extraordinary case.

[00:21:01] Speaker 05:
In this circumstance?

[00:21:03] Speaker 03:
Sure.

[00:21:03] Speaker 03:
I would point you to the board's decision in order that includes the administrative law, judge's decision in order, and underneath the remuneration, page six, of the decision in order.

[00:21:13] Speaker 02:
What do you think is the winning argument there?

[00:21:18] Speaker 02:
What words do you think carry the day, winding yourselves?

[00:21:25] Speaker ?:
Okay.

[00:21:28] Speaker 03:
An affirmative bargaining order vindicates the Section 7 rights of the unit employees who were denied the benefits of collective bargaining by the respondent's withdrawal of recognition and resulting refusal to bargain with the union for a successor collective bargaining agreement.

[00:21:42] Speaker 05:
Would that not completely displace all season decision-making issues?

[00:21:48] Speaker 05:
That's sufficient to warrant a bargaining order.

[00:21:51] Speaker 05:
Well, in this particular case... Would that same language not apply

[00:21:57] Speaker 05:
Could that not be quoted in any case where there's a cease and desist order?

[00:22:05] Speaker 03:
No, I don't think it could be in any case where there was a cease and desist order.

[00:22:08] Speaker 03:
This is specifically the remedy of a bargaining order when there has been an unlawful withdrawal of recognition from the union.

[00:22:14] Speaker 03:
And so that factored number one, I'd go to the second factor.

[00:22:18] Speaker 05:
Is this a stronger case for bargaining order than Vincent was?

[00:22:24] Speaker 03:
In this instance, because the employees in the union were deprived based upon the withdrawal of recognition, contrary to Levitz, that the employer

[00:22:38] Speaker 03:
engaged in at its peril, the board under its precedent and respectfully considering the factors that this court instructed to consider in Vincent made the determination that in this particular instance, an affirmative bargaining order was appropriate.

[00:22:56] Speaker 03:
And what the board would urge is that in this case, there was an earlier case, Anderson Lumber was the other case in which the bargaining order was

[00:23:06] Speaker 03:
for a very similar case to this one where the board also imposed an affirmative bargaining order and that case came before this court in a case called Pacific Coast and although the bargaining order wasn't at issue in this case, what it demonstrates is that the board continuously adheres to its precedent as well as considers the best

[00:23:28] Speaker 03:
factor, the factors in Vincent Industrial Plastics and in this particular instance when for three and a half years the employer has not bargained with the union and at the time there was no actual loss, which is exactly what Levitz provides is not supposed to happen, the remedy in order to get what was the third piece of what I think is very persuasive of the order, the cease and desist order alone would not ever remedy the

[00:23:54] Speaker 03:
The refusal to bargain because it would permit another challenge to the union's majority status before the taint of the unlawful withdrawal.

[00:24:01] Speaker 05:
Suppose such a challenge would have been well taken.

[00:24:04] Speaker 05:
I'm sorry.

[00:24:05] Speaker 05:
Suppose such a challenge would have been well taken, but for the board's order.

[00:24:10] Speaker 05:
Why shouldn't it be the case that they could bring another

[00:24:15] Speaker 05:
The employee's choice?

[00:24:17] Speaker 03:
You mean that the employee should be able to bring another child?

[00:24:20] Speaker 03:
Absolutely.

[00:24:21] Speaker 03:
Once there's been a reasonable time and period of bargaining to remedy the effect of not having the loss of majority that's required under the law.

[00:24:31] Speaker 02:
See, that's such a simple answer.

[00:24:34] Speaker 02:
You can't do it.

[00:24:35] Speaker 02:
But the board in a case like this, where you have this situation, can issue a summary order and require an election.

[00:24:43] Speaker 02:
where the employer has acted innocently at the moment it acted, and then the union withholds the information that would have damned them.

[00:24:51] Speaker 02:
That's the problem you've got.

[00:24:52] Speaker 02:
The board can summarily said, you violated the act.

[00:24:55] Speaker 02:
We're having an election.

[00:24:59] Speaker 03:
Your Honor, I, again, disagree with the innocent, but I don't want to burden the court any further.

[00:25:06] Speaker 03:
Do you have any further questions?

[00:25:07] Speaker 03:
No.

[00:25:07] Speaker 03:
I'm out of time.

[00:25:08] Speaker 03:
Thank you.

[00:25:08] Speaker 03:
Thank you.

[00:25:10] Speaker 00:
Does Ms.

[00:25:11] Speaker 00:
Key have any time now?

[00:25:13] Speaker 00:
Why don't you take a minute?

[00:25:15] Speaker 00:
You've come all the way from California.

[00:25:22] Speaker 04:
I really want to point out in the Anderson Lumber case that counsel just referred to, the appellate court did not take up the argument of the appropriateness of a bargaining order because the petitioner had waived that argument and hadn't brought it up for appeal.

[00:25:43] Speaker 04:
I think that in this particular case, the underlying purposes of the Act, which is employee-free choice, the most effective remedy in this case would be to order an election.

[00:25:57] Speaker 04:
And I thank you.