[00:00:03] Speaker 00:
Case number 16-1058 at L, Veritas Health Services, Inc., doing business at Chino Valley Medical Center Petitioner versus National Labor Relations Board.

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Mr. Cohen for Petitioner, Veritas Health Services, Inc., Mr. Taubman for Petitioner, Jose Lopez Jr., Ms.

[00:00:19] Speaker 00:
Sheehy for Respondent, and Ms.

[00:00:21] Speaker 00:
Chandrin for the Intervener.

[00:01:05] Speaker 10:
Good morning.

[00:01:13] Speaker 01:
Good morning, Your Honors.

[00:01:14] Speaker 01:
May it please the Court, Jamie Hom, the law firm DLA Piper, representing petitioner Veritas Health Services Inc.

[00:01:21] Speaker 01:
doing business at Chino Valley Medical Center.

[00:01:24] Speaker 01:
By prejudging this case before any testimony was taken or evidence presented, ALJ McCarrick made three fundamental errors that undermine the board's decision and as a result interfere with employees' Section 7 rights to select their bargaining representative.

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One, A.L.J.

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McCarrick made a fundamental error by not conducting the highly fact-specific analysis required under master slack to determine if the U.L.P.'

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's during an election campaign that occurred three years earlier actually tainted the loss of majority support that led to the decertification position in this case.

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Two, A.L.J.

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McCarrick made a fundamental error by refusing to allow Chino to obtain materials and information showing that UNAC, the union here, its three-month delay in starting bargaining was inexcusable, even in part, even a week, an issue critical to determining when the certification bar ended.

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Three, A.L.J.

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McCarrick made a fundamental error by applying an erroneous legal standard requiring that in order for Chino to introduce the DeSar petition in this case, it had to have, at the time the petition was received, authenticated every one of those signatures.

[00:02:43] Speaker 01:
A standard that is erroneous and Chino could not meet.

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Those errors require reversal and remand.

[00:02:50] Speaker 05:
That isn't the standard that the ALJ applied.

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The ALJ, in the ALJ's opinion, articulates the Levitt's test.

[00:02:59] Speaker 05:
And there was a lot of back and forth and a lot of unartable statement, I think.

[00:03:05] Speaker 05:
Everyone was sort of stumbling into that issue of what needed to be shown.

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I think we can agree that what needs to be shown is, first, that the evidence

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gave the employer an objectively reasonable basis to think that the union had lost the confidence of a majority.

[00:03:26] Speaker 05:
And then if that's challenged under Levitz, the employer has to show, has to substantiate that those are accurate signatures, that they were at the time that they said, that they were people who were then employed, just verify that it really does show that a majority of the employees as of that time.

[00:03:45] Speaker 05:
So if that's what Levitz requires,

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And if there's ambiguity in the oral transcript, what do we do with that?

[00:03:52] Speaker 01:
Well, first of all, I agree with you.

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That is what Levitz requires.

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I disagree, however, if there's any ambiguity in this transcript.

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From the very first opening minutes of this hearing, even before the hearing started,

[00:04:07] Speaker 01:
A.L.J.

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McCarrick said, in his words, the desurputation petition is, quote, irrelevant.

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He didn't want to see that desurputation petition.

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Before a single witness was sworn, any evidence presented, he said, declare, matter of law, irrelevant.

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And then when Chino attempted to introduce that petition, his quoting A.L.J.

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McCarrick,

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If somebody from the employer didn't authenticate all of those signatures at the time they received it, as far as I'm concerned, the objective considerations were invalid.

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So he's looking at the Levitt standard, but he's saying you had to authenticate them at the time.

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And he goes on, you can't come in now.

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and say, Oh, by the way, we'll show you who they were.

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He's saying just plot exactly opposite of what you just asked me.

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You can't come in now and say, Oh, by the way, we'll show you who they are.

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No, you had to do it then to have a good faith doubt at that point in time.

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That's a standard that's erroneous and it's then we could not meet.

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Chino could not meet.

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It didn't have a witness who could show at the time.

[00:05:12] Speaker 05:
But did you have a witness who could show as of the time?

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as of the time that those signatures were valid.

[00:05:20] Speaker 01:
You mean as of the time of the hearing?

[00:05:22] Speaker 05:
No, that could show at the hearing that they were valid when collected.

[00:05:28] Speaker 08:
Well, there was a reasonably, objectively reasonable basis to believe at the time.

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I think you mean the notice of decertification came from employer to union.

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Is that right?

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I'm actually going a little further than that.

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So assuming it was objectively reasonable, then the union says, no, it's not.

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We need to know a lot more.

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Who actually was employed at the time?

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Can we read those signatures?

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Who were those employees?

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Do the signatures match the employee's actual signature?

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We need to know that.

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And what my question is, was Chino prepared to show the thing that it does actually have to show?

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when a petition is challenged under Leavitt's.

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Was it prepared to show that given the employees who are employed at the time that the signatures were collected,

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that we can discern who these are, that they were indeed a majority.

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Was there a witness available to do that?

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There were two witnesses.

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One, the general counsel, Fortuno, was sitting at counsel's table who was prepared to testify to verify at the time of hearing they were authentic.

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not to testify as A.L.J.

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McCarrick was requiring that at the time they were received, we had verified authenticity.

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Under Ambassador Services, the board has said, a withdrawal of recognition is not unlawful where the employer does not verify the authenticity of the signatures on a disaffection petition before withdrawing recognition.

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But that's what A.L.J.

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McCarrick was requiring Chino do here, which we could not do.

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The other person you can't counsel help you understand.

[00:07:06] Speaker 10:
I actually read his comment differently than you did.

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I'm looking at J. A.

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404 and 405.

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He said, I've considered this matter.

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and basically proof of objective considers to justify withdrawal of recognition is a burden of the employer.

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And then here's the key sentence.

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And it is a burden they have to establish at the time they receive the documents – I'm sorry, the next sentence is the key sentence.

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So if somebody can't – if somebody from the employer can't authenticate all of these documents or

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didn't authenticate all of these signatures the time they received it, as far as I'm concerned, the objective considerations are invalid.

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As I read that, the ALJ is giving you two options, right?

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And only one of them is the requirement to authenticate at the time that they received it.

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The other is a general, you can authenticate all of these documents, and you didn't do that.

[00:08:03] Speaker 01:
I think, Your Honor, you have to read that sentence in the context of the rest of the colloquy here.

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And it's a burden they have to establish at the time they receive the documents, the sentence before, the sentence after.

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You can't come in now and say, oh, by the way, we'll show you who they were, which would be the second.

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He says you can't do that.

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You had to do it then to have a good faith basis out of the time.

[00:08:27] Speaker 05:
I think, I mean, it is, I can see that it is somewhat in our full, but I think what he's saying is that the point of validity is them.

[00:08:37] Speaker 05:
So, and I take it also, though, that this is kind of for you in the background because you object to the ALJ saying this is not relevant.

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Now, I think that what's, I mean, as I understand it, the question is, is, if this is during the certification year,

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then why would it be relevant if there's a bar to any kind of challenge during the certification year, then I think he's operating on that premise.

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So it's not that he doesn't want to hear relevant evidence.

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This is a legal matter, given where we are, it's not relevant.

[00:09:18] Speaker 01:
One, a few things, Your Honor.

[00:09:20] Speaker 01:
First, the reason A.L.J.

[00:09:22] Speaker 01:
McCavage says, quote, it's irrelevant is because he's relying on the ported tape of the U.L.P.'

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's from 2010.

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It is not because of the certification year.

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That's his unequivocal statement at the very beginning of the evidence.

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And then on the certification year itself, there are two important points here.

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One is this decertification petition was circulated with signatures collected and presented to the employer in the final days of the certification bar per the general counsel and UNAC.

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But it's our position, Your Honor, that the certification bar actually should have started earlier.

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And that's the, it's one of the other three critical areas by ALJ and McCarrick.

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We, Chino should have had the opportunity to show at the hearing that the certification bar started earlier.

[00:10:12] Speaker 01:
It didn't start on June 13th 2012.

[00:10:14] Speaker 01:
I'm sorry.

[00:10:15] Speaker 08:
I'm sorry.

[00:10:16] Speaker 08:
I wanted to get you make your point.

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But just another one.

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You agree that someone turns on a petition to the employer that has signatures on it.

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Do you agree that that's, without even looking, that suffices for the employer to announce I'm withdrawing recognition of the union?

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Or do they have to have an objectively reasonable basis at that moment in time to say... Well, that's exactly what Levitt's commands are on.

[00:10:45] Speaker 01:
Which might be the latter.

[00:10:46] Speaker 08:
So it's the latter of your... You have to have an objectively reasonable basis at that time.

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You could check the signatures at that time if you wanted, or you may have some other basis for being objectively reasonable at that moment in time.

[00:11:01] Speaker 01:
Right, but you did not have to do what A.L.J.

[00:11:03] Speaker 01:
McCarrick required, which was authenticate each and every signature at the time and have a witness standing next to me at the hearing who was prepared to testify all those signatures were authenticated.

[00:11:15] Speaker 08:
So what did you have to show

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objective reasonableness at the time the decision to withdraw recognition was made.

[00:11:24] Speaker 01:
I think unfortunately the record is, that's absent in the record because of ALJ Carrick's decisions here.

[00:11:30] Speaker 08:
The dissertation petition which would be... Where did he say you can't show

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because earlier on that same page, it says, well, you gotta show they were, pages seven through 11, you gotta show they were bargaining unit members have fixed their signatures.

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At the time they had fixed their signatures, they were bargaining unit members, which raises a collateral question.

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If respondent didn't check that, is that objective proof?

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Probably would still be, in my view.

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So there probably would still be objective proof, in my view, if you didn't check at the time.

[00:12:00] Speaker 08:
But I just didn't know what you were proffering

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as the objective, what you did that was objectively reasonable back then.

[00:12:09] Speaker 01:
We were proffering the decertification petition itself and under Levitz, which was a decertification petition case, the court presumes in that case that the decertification petition is objective proof.

[00:12:22] Speaker 08:
So then it sounds like it's my first scenario, which is I don't have to do anything.

[00:12:29] Speaker 08:
Someone hands me a petition.

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I don't have to look and count to see if it's the same number.

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All I have to do is say, here's a petition, and I get to say, good, I'm withdrawing recognition without even looking at it, as long as

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When that hearing comes, I'll be able at that point to prove it, which is a very different test.

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And that means you don't have to have any objective basis at the time you do the draw recognition.

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It would be good to do it.

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It would be less risky.

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But you don't have to do it as long as you can prove it later.

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And I thought you said that's not the test.

[00:12:59] Speaker 01:
I'm not saying, Your Honor, that there is

[00:13:01] Speaker 01:
absolutely nothing that has to happen at the time.

[00:13:04] Speaker 08:
It has to be objectively reasonable at the time, correct?

[00:13:07] Speaker 01:
But that may be, Your Honor.

[00:13:08] Speaker 01:
How does that get proved?

[00:13:09] Speaker 01:
It may be simply a counting of the numbers.

[00:13:12] Speaker 01:
You know how many, you're the employer, you know how many members in the bargaining unit.

[00:13:15] Speaker 08:
So did you have, and so what were you wanting to offer to prove the employer did to show objective reasonableness at that moment?

[00:13:27] Speaker 01:
it would have been the, what we needed was that these sort each position itself.

[00:13:30] Speaker 08:
It can't be that, oh, lucky for us, they're valid at the hearing.

[00:13:33] Speaker 08:
You said that's not right.

[00:13:35] Speaker 08:
Right.

[00:13:35] Speaker 08:
So you would have had to show, one way would be to show, actually we sat down and checked the signatures right then.

[00:13:42] Speaker 08:
That would have been allowed, but you didn't have to do that.

[00:13:45] Speaker 08:
And so what else were you going to show?

[00:13:49] Speaker 01:
All that was needed was the introduction at that time of a decertification petition, which was received.

[00:13:53] Speaker 01:
There's no question it was received.

[00:13:55] Speaker 01:
It was communicated to the union that it was received.

[00:13:57] Speaker 01:
That was the attempted shelling.

[00:14:00] Speaker 05:
That was the attempted shelling was just to submit the decertification petition.

[00:14:04] Speaker 01:
Was received.

[00:14:04] Speaker 01:
Well, I mean, at this point, Your Honor, we don't have any record evidence of what happened because of A.L.J.

[00:14:08] Speaker 01:
McCarrick's decisions.

[00:14:09] Speaker 01:
No, we have a discussion.

[00:14:10] Speaker 05:
So I'm just trying to understand your position about what the employer was prepared

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to submit because you said the general counsel was there.

[00:14:20] Speaker 05:
I think we interrupted you.

[00:14:21] Speaker 05:
You didn't say you said there were two witnesses.

[00:14:23] Speaker 05:
The general counsel was there and who else was there?

[00:14:24] Speaker 01:
The general counsel was there.

[00:14:26] Speaker 01:
Who was the one who would receive the petition?

[00:14:28] Speaker 01:
Again, at this point, we're now outside the record, Your Honors, and I caution you.

[00:14:32] Speaker 01:
Usually there's proper records.

[00:14:34] Speaker 01:
So to that point, Judge Millett,

[00:14:37] Speaker 01:
We were told, unequivocally, as a matter of law by Angel J. McCarrick, the petition was irrelevant.

[00:14:44] Speaker 01:
He then said, you can't come and introduce it now.

[00:14:46] Speaker 01:
Should we have tried again?

[00:14:48] Speaker 01:
I think at this point, we don't want second guest trial counsels being rejected twice.

[00:14:54] Speaker 08:
Who was your second person?

[00:14:55] Speaker 08:
Just so I don't slip on that.

[00:14:57] Speaker 01:
We had the individual who collected the signatures.

[00:15:02] Speaker 01:
He's the attempted intervener.

[00:15:04] Speaker 01:
Although I think he exited the hearing.

[00:15:07] Speaker 01:
At this point, he had exited.

[00:15:08] Speaker 01:
He wasn't present.

[00:15:09] Speaker 01:
But he had attempted to intervene in this case.

[00:15:12] Speaker 01:
It was his Section 7 rights that were at their issue.

[00:15:15] Speaker 05:
Was he the person who personally collected all the signatures?

[00:15:18] Speaker 01:
I can't speak.

[00:15:18] Speaker 05:
Yeah.

[00:15:19] Speaker 05:
And the general counsel, so the general counsel that would have said, this is in fact something I received,

[00:15:25] Speaker 05:
presumably but wouldn't have personal knowledge of this fixing of the signatures right?

[00:15:33] Speaker 01:
in terms of them being actually signed to the piece of paper I would presume not but I can't say it was not on the record on the certification year and the challenge to the beginning of the certification year

[00:15:50] Speaker 05:
As I read the decision, there was no delay in the ALJ's view.

[00:16:00] Speaker 05:
And if that's the case, then you don't even get into the question of whether or not it was unreasonable.

[00:16:09] Speaker 01:
Well, I think there's a recognition that there's a delay from the time this court issues the bargaining order in, I believe it's March, until

[00:16:24] Speaker 01:
The first bargain session, the unquestionable is three months.

[00:16:27] Speaker 05:
There's no question.

[00:16:29] Speaker 05:
I guess the question is that delay is a legal matter.

[00:16:31] Speaker 05:
What the ALJ says is some time can reasonably be allowed before the certification year begins for the union to reestablish contacts with union employees to facilitate bargaining on their behalf.

[00:16:41] Speaker 05:
Some time can reasonably be allowed.

[00:16:44] Speaker 05:
And so I think the question is, is that even delay if the kinds of things that, you know, we're going to check back and forth with one another, we're going to say, you know, are you available in these dates, and we're going to be back as a responsible union, should be back in touch with members, and formulate bargaining priorities according to the members' wishes.

[00:17:07] Speaker 05:
That's time, and as I take the ALJ's finding, that's not delay.

[00:17:11] Speaker 01:
I respectfully disagree, Your Honor.

[00:17:13] Speaker 01:
It is delay.

[00:17:16] Speaker 01:
This court, not this court, the board has found, in the employer delay context, a month of not setting, judging, bartering as delay, 40 days as delay.

[00:17:26] Speaker 01:
And in Dominguez Valley, the board, formed by the Ninth Circuit, conducted a proper analysis of a three-month delay and allowed the employer in that case to introduce evidence over why there was a delay.

[00:17:40] Speaker 01:
The board ruled, well, a lot of that delay was actually attributable to the employer, so it wasn't going to say the three-month delay was enough to change the certification year.

[00:17:49] Speaker 01:
And in that case, the withdrawal came three months before the end of the certification period.

[00:17:55] Speaker 01:
Here we're talking a week.

[00:17:57] Speaker 01:
If there was evidence that could have been collected under this court's decision in Ozark Automotive,

[00:18:04] Speaker 05:
in the of the employers and i'll see that information here judge mccarrick says he prejudices the issue he says it's irrelevant reason do you have to believe that i mean i i'm thinking delay so if i'm waiting for the redline and it's eight minutes and it's usually eight minutes it's coming in eight minutes i don't think that the trains been delayed train there's some elapsed time but when they said oh hell because of you know malfunctioned uh...

[00:18:30] Speaker 05:
you know, Bethesda, then I think there's delay.

[00:18:33] Speaker 01:
So... I'm smelling on it because the metro just gets me the delay, but I follow the question or laughing at it.

[00:18:41] Speaker 05:
So if there isn't delay, then what is the threshold?

[00:18:47] Speaker 05:
In every single case, there's going to be discovery into one another's thinking when nobody has a reason to think this is out of line?

[00:18:56] Speaker 01:
Well, there was.

[00:18:57] Speaker 01:
I mean, there's no question about it.

[00:18:58] Speaker 01:
There's a three-month gap between the bargaining order and the security session.

[00:19:02] Speaker 05:
And the question is, is that whose burden is it to say, you know, there's a delay?

[00:19:07] Speaker 01:
I think here the employer had some burden to show there is an inexcusable delay, the test under Dominguez Valley.

[00:19:15] Speaker 01:
And this inexcusable delay, even procrastination, counts.

[00:19:19] Speaker 01:
But we were precluded by ALJ.

[00:19:21] Speaker 08:
Is it unreasonable delay if the employer agrees to it?

[00:19:24] Speaker 08:
Can it be an unreasonable delay if the employer agreed to it?

[00:19:27] Speaker 01:
If we don't know the reason why.

[00:19:30] Speaker 08:
No, if you do know the reason why and you say that's fine.

[00:19:33] Speaker 01:
If we were to know the reason why, I think that's a different scenario.

[00:19:38] Speaker 01:
That's not the scenario we have here.

[00:19:39] Speaker 08:
No, I think that's the case then if you go to JA 283 where you have the email from the union.

[00:19:44] Speaker 08:
Hi Mary, thanks for the information.

[00:19:49] Speaker 08:
we'll be reviewing it and proceeding with proper preparations for bargaining.

[00:19:54] Speaker 08:
If there's a reason to meet tomorrow, give me a call, which goes, that's fine.

[00:20:00] Speaker 08:
Please let me know what dates you have.

[00:20:02] Speaker 08:
So that's fine to take the time to review the information, proceed with preparations for bargaining.

[00:20:09] Speaker 08:
And then within a month, they've got, I hear less than a month, they've got the union proposes dates.

[00:20:17] Speaker 01:
So she said it's fine, take the time, look it over, prepare for bargaining, and then 28 days later... That may explain, Your Honor, that three-week differential, and that's what Dominguez Valley now analyzes, is the month delay to prepare.

[00:20:34] Speaker 06:
What explains the two-month delay between... Well, then they send a letter to the next page of the JA, here's the dates we propose.

[00:20:43] Speaker 06:
And then we turn the page, and there's the employer saying, I'm confirming June.

[00:20:51] Speaker 01:
But you asked me, Your Honor, if we understood the reason for the delay, is it still a delay?

[00:20:56] Speaker 01:
In that case, maybe there was an understanding for the three-week differential between the time the union proposed the dates.

[00:21:04] Speaker 01:
But there is no explanation for the statement in March

[00:21:09] Speaker 01:
offering early June dates.

[00:21:11] Speaker 01:
Perhaps Barbara Lewis was taking vacation.

[00:21:14] Speaker 01:
Perhaps she just didn't want to deal with Chino.

[00:21:15] Speaker 08:
That was the end of April.

[00:21:16] Speaker 08:
April 20th, we're proposing June 13th.

[00:21:19] Speaker 08:
And what I'm wondering is, so she said, that's fine, take time as you need.

[00:21:22] Speaker 08:
And then there's no, I don't see any communication where she comes back and says, why are we waiting until June?

[00:21:27] Speaker 08:
She comes back and says, June 13th, let's lock it in.

[00:21:29] Speaker 01:
And that's exactly what ALJ McCarrick should have permitted Chino to obtain evidence on.

[00:21:35] Speaker 01:
Ozark Automotive is... You can have Ms.

[00:21:39] Speaker 08:
Schottmiller works for you.

[00:21:40] Speaker 08:
You don't need them for that.

[00:21:42] Speaker 08:
And she said, that's fine.

[00:21:44] Speaker 08:
Take your time.

[00:21:45] Speaker 08:
And then we get the dates.

[00:21:46] Speaker 08:
And then she comes back and says, here's June.

[00:21:48] Speaker 08:
I've been June.

[00:21:49] Speaker 01:
Those are two separate instances.

[00:21:51] Speaker 01:
One is the first three weeks before we get the dates.

[00:21:55] Speaker 01:
Well, how do we know?

[00:21:55] Speaker 01:
The second is the two months.

[00:21:57] Speaker 01:
And that's exactly, how do we know?

[00:21:59] Speaker 01:
And Ozark Automotive, where

[00:22:01] Speaker 01:
This court relies on statements by now, justices Alito and former Justice Scalia, and says,

[00:22:10] Speaker 01:
we can presume and assume what the evidence or the information sought would have shown and that would have supported the employer when an ALJ refuses to enforce a subpoena going to a critical issue.

[00:22:22] Speaker 01:
Here, if we were able to collect evidence or obtain evidence, even a one-week delay was partly from procrastination from Lewis or someone else at UNAC,

[00:22:35] Speaker 08:
Is there any case of unreasonable delay where the employer had said that's fine and never voiced a word of objection and you see things proceeding in organized steps here within reasonable timeframes?

[00:22:52] Speaker 01:
I'm not aware of a case, Your Honor, but again, this is unique.

[00:22:54] Speaker 01:
We're talking about a withdrawal that came, if anything, a week early, or signatures were collected a week early.

[00:23:02] Speaker 01:
The withdrawal was rescinded and came after the certification here, even under UNHEC and the General Counsel's position.

[00:23:08] Speaker 05:
So, over a three-month period, if there was a one-week delay that's inexcusable under Vegas Valley... But it makes sense that everyone, if they know when bargaining began, and if that's the presumptive rule, that everyone's operating to a deadline.

[00:23:21] Speaker 05:
I mean, they think, okay, we have this certification year.

[00:23:25] Speaker 05:
And there's... Your brief says that the union acted unlawfully.

[00:23:33] Speaker 05:
I don't understand that at all.

[00:23:34] Speaker 05:
Why would it be unlawful?

[00:23:36] Speaker 01:
Well, if we look at the board's view of employer delay when it says an employer is delaying for a month, 40 days and that delay is unlawful?

[00:23:45] Speaker 01:
in similar situations where an employer may be, I think the board has said, if I remember correctly, schedules don't matter, bargaining matters when they're talking about employers.

[00:23:56] Speaker 01:
But now when the script is flipped and we're talking about a union delay, it seems like they can take as much time as they want.

[00:24:04] Speaker 01:
Yes, there is, and Dominguez Valley recognizes that there must be some time for preparation, particularly when there's been some delay between the initial election and bargaining here.

[00:24:13] Speaker 05:
We should let you sit down, but I had one other question about the, why was the letter saying you no longer represent, we have reason to believe you no longer represent what was sent, and then it was sent in error and it was withdrawn, and it was sent again three days later.

[00:24:30] Speaker 05:
What was that all about?

[00:24:32] Speaker 01:
Again, Your Honor, that's not in the records.

[00:24:34] Speaker 01:
Oh, it is in the records.

[00:24:34] Speaker 01:
No, the letter is, Your Honor, but the testimony that goes to why it was withdrawn is not in the record.

[00:24:39] Speaker 01:
The letter itself, I believe,

[00:24:43] Speaker 01:
I think it simply says it was withdrawn, and it's reissued a few days later.

[00:24:48] Speaker 01:
Is it safe to presume that it was a question of when the certification year ends?

[00:24:53] Speaker 01:
The same thing we've been discussing for the last 15 minutes.

[00:24:55] Speaker 01:
I think that's safe to presume that testimony doesn't exist in our records.

[00:24:58] Speaker 01:
I can't speak to it though.

[00:25:00] Speaker 05:
The AOJ made a finding that the union validly accepted the outstanding terms, and I didn't see you challenge that before the board.

[00:25:10] Speaker 05:
How does that bear on this?

[00:25:12] Speaker 01:
I do believe we challenged that before the M1, the post-hearing objections.

[00:25:18] Speaker 01:
And I believe that was challenged before the board drawing.

[00:25:20] Speaker 01:
We can find the sites that I believe was challenged.

[00:25:22] Speaker 01:
But one, even under that reasoning, ALJ recognized there wasn't an agreement on the length of the CVA.

[00:25:31] Speaker 01:
So it wasn't actually a final agreement.

[00:25:34] Speaker 01:
Second, it's, I think, clear when you look at the union's conduct

[00:25:39] Speaker 01:
when they, three weeks earlier, out of hand reject the employer's offers, on June 9th, Chino receives that decertification petition, and all of a sudden, the union has an about face on things they rejected and said were absolutely unacceptable.

[00:25:58] Speaker 01:
I think that, in some ways, it is a bad fate shown by the union, knowing that they've now lost majority support.

[00:26:04] Speaker 01:
The third piece, Your Honor, is- Wait, they didn't know that.

[00:26:07] Speaker 05:
They were knowing they were coming up against a deadline.

[00:26:09] Speaker 01:
I don't know that's right.

[00:26:10] Speaker 01:
I mean, I don't think there's any record testimony on that, Your Honor.

[00:26:13] Speaker 01:
But the third piece is, as an employer, we are required to withdraw recognition and stop bargaining with a minority union.

[00:26:23] Speaker 05:
Not during the certification year, Your Honor.

[00:26:25] Speaker 05:
You can't.

[00:26:28] Speaker 01:
Well, there's, I think, two things there, Your Honor.

[00:26:31] Speaker 01:
One, we challenge that when the certification year truly should have began, again, even a week delay, we should have been able to collect evidence.

[00:26:37] Speaker 01:
And under Ozark, that's reversible unequivocally.

[00:26:40] Speaker 01:
The second, Your Honor, is a withdrawal.

[00:26:43] Speaker 01:
At this point, one that was, or petition presented to us two days early, I think, is

[00:26:50] Speaker 01:
is a de minimis under LTD.

[00:26:53] Speaker 01:
This case is much more similar to LTD than it is to Chelsea Industries, where the petition comes five months early, the parties essentially stop the withdrawal at that point.

[00:27:05] Speaker 01:
We're looking much more in the LTD camp than we are in the Chelsea Industries camp.

[00:27:10] Speaker 01:
Thank you, Your Honors.

[00:27:11] Speaker 01:
I'd like to still have a good time.

[00:27:12] Speaker 01:
Thank you.

[00:27:27] Speaker 02:
May it please the court, I'm Glenn Taubman on behalf of Petitioner Jose Lopez.

[00:27:33] Speaker 02:
As you have heard, this entire case revolves around one thing, the timing and validity of Mr. Lopez's decertification petition.

[00:27:42] Speaker 02:
that he collected, yet when Mr. Lopez filed a straightforward motion to intervene to ensure that his petition and his Section 7 rights, and I would add he's the only person in this room who has Section 7 rights, he filed a motion to intervene

[00:28:02] Speaker 02:
and he tried to protect his rights and protect his petition and two ALJs and the board refused to allow him to intervene and completely silenced him from defending his rights.

[00:28:16] Speaker 08:
If we were to hold that the petition was procured during the certification year, if we were to hold that the petition was procured during the certification year,

[00:28:29] Speaker 08:
Would there be any reason for your intervention?

[00:28:32] Speaker 02:
Yes, absolutely, positively, and I'll tell you why.

[00:28:36] Speaker 02:
Because Mr. Lopez could have offered evidence and testimony that would have been relevant to that issue and all others.

[00:28:45] Speaker 02:
What issue?

[00:28:46] Speaker 02:
The certification year issue.

[00:28:49] Speaker 02:
because Mr. Lopez had no way of knowing when this certification year began or ended.

[00:28:59] Speaker 08:
Well, that's going to be true in any given case.

[00:29:01] Speaker 08:
I don't understand what that has to do.

[00:29:03] Speaker 08:
The intervention here was that he could come in and help verify the signature of the petition.

[00:29:08] Speaker 08:
But if that isn't an issue, what does he have to say about the timing of the certification year, different from the employer?

[00:29:15] Speaker 02:
If you look at what the ALJ said about the LTD ceramics issue, which is on page JA22, the ALJ says, the respondent chose not to offer the petition

[00:29:34] Speaker 02:
And it is safe to say that the signatures were collected prior to June 9th when respondent received the petition.

[00:29:42] Speaker 02:
Thus, this case is distinguishable from LTD Ceramics.

[00:29:46] Speaker 02:
Mr. Lopez could have testified that

[00:29:50] Speaker 02:
He had no idea when the certification year was.

[00:29:55] Speaker 02:
He was doing his best as an employee to try to protect his rights and the rights of his fellow employees, and that this case really was like LTD ceramics.

[00:30:06] Speaker 08:
When you say he didn't have any way of knowing, are you stating it as a matter of fact?

[00:30:10] Speaker 08:
That Mr. Lopez did not know the certification year.

[00:30:13] Speaker 02:
I don't believe Mr. Lopez knew the certification year.

[00:30:16] Speaker 02:
And in fact, the fact that UNAC, the NLRB, and CINO can't agree on what the certification year is, how is an employee who's a nurse, not a labor lawyer, how is he supposed to know?

[00:30:30] Speaker 02:
He did his best to collect signatures to exercise his Section 7 rights.

[00:30:35] Speaker 08:
If the certification year is the outside one, June 13th or whatever,

[00:30:39] Speaker 08:
There's no question he collected the signatures.

[00:30:41] Speaker 08:
Is there any question he collected the signatures before the Outer Loan Certification Year?

[00:30:46] Speaker 02:
There's no question.

[00:30:46] Speaker 02:
If, in fact, we're going to have this hard and fast day of June 13th, yes.

[00:30:52] Speaker 02:
Right.

[00:30:52] Speaker 02:
Right.

[00:30:52] Speaker 08:
So then this issue doesn't matter?

[00:30:55] Speaker 02:
Well, it doesn't.

[00:30:55] Speaker 08:
Whether he knew or not doesn't change the certification year.

[00:30:58] Speaker 02:
Well, it matters in the sense that this whole proceeding, why we're here, is the protection of employees' Section 7 rights.

[00:31:07] Speaker 05:
Well, one question I have is, why isn't Section 9, Petition Under 9C, fully protective of Mr. Lopez's rights here?

[00:31:16] Speaker 02:
It wouldn't be, Your Honor.

[00:31:17] Speaker 02:
In part, that would be because of the board's blocking charge rules.

[00:31:21] Speaker 02:
And Mr. Lopez waited until June 14 and filed a decertification

[00:31:27] Speaker 02:
I can guarantee you that the board would have said, we can't process your petition, and we won't process your petition, because we have these things called blocking charge rules, which in the SCOMA's case that this court issued a few months back, Judge Henderson wrote about that.

[00:31:46] Speaker 02:
These are board rules that prevent employees from exercising their Section 9 rights.

[00:31:52] Speaker 05:
So when they hold... So you're talking about the rule that when there's an agreement in place...

[00:31:57] Speaker 02:
No, no, I'm talking about when a union files unfair labor practice charges that aren't fully remedied, then no election can go forward.

[00:32:08] Speaker 02:
So just like the board is saying this withdrawal petition was invalid, had he filed a decertification petition with the board, they would have also said- But they were still un-remedied on June 9th.

[00:32:20] Speaker 02:
Excuse me.

[00:32:21] Speaker 08:
They were still in remedied on June 9th, so the blocking charge thing would have gone through this whole time.

[00:32:25] Speaker 08:
I don't understand why that makes a difference.

[00:32:27] Speaker 02:
Well, I'm trying to answer Judge Pollard's question that for the board to hold a, hold this out as a, you know, a remedy.

[00:32:36] Speaker 02:
the petition under Section 9, it's an illusory remedy.

[00:32:41] Speaker 05:
It would not have... Well, but is it illusory for a different... I mean, it's the same issue that the intervention addresses.

[00:32:48] Speaker 05:
And so the question is, is there something worse about being left to Section 9?

[00:32:56] Speaker 05:
rights.

[00:32:57] Speaker 05:
And I guess there are three different blocks here, right?

[00:32:59] Speaker 05:
There's the block of the unfair labor practices, there's a block of the certification year, and there's a block once there's a collective bargaining agreement in place.

[00:33:08] Speaker 05:
And all of those, it's like we hold national elections periodically, even though during the period of someone's tenure in office,

[00:33:16] Speaker 05:
people may lose confidence in that individual.

[00:33:19] Speaker 05:
So too with the union, there's a periodicity so that action happens and then there's an evaluation.

[00:33:26] Speaker 05:
So I take you to not be a fan of those rules, but those are pretty well established, right?

[00:33:31] Speaker 02:
Well, they're fairly well established, but I'm just trying to make the point and answer to your honest question that when this is held out as, well, Mr. Lopez's rights would be protected if he had only filed a petition under Section 9, I'm telling you that they wouldn't.

[00:33:45] Speaker 02:
And again, the whole reason that we are here, I believe, is to protect employees Section 7 rights.

[00:33:52] Speaker 02:
And Mr. Lopez's were not protected.

[00:33:54] Speaker 08:
What about, I'm sorry, just one quick question to try to understand.

[00:33:58] Speaker 08:
I understand your argument and your argument that

[00:34:01] Speaker 08:
employers don't represent employees for purposes of asserting their rights in this regard.

[00:34:07] Speaker 08:
Would your position mean that every employee that signed that petition could also intervene?

[00:34:16] Speaker 02:
I think that's pushing it a little too far.

[00:34:19] Speaker 08:
How?

[00:34:19] Speaker 08:
Every one of those employees has the exact same right as Mr. Lopez.

[00:34:22] Speaker 08:
I'm just trying to understand the limiting principle.

[00:34:24] Speaker 08:
I can imagine, you know, and then all the employees on pro-union side want to intervene.

[00:34:28] Speaker 08:
So what limiting principle do you recommend for these decisions?

[00:34:32] Speaker 08:
It can't be just the one who did the collection.

[00:34:35] Speaker 02:
Well, OK.

[00:34:36] Speaker 02:
Let me try to answer your question this way.

[00:34:39] Speaker 02:
The NLRB has no discernible standards for who can intervene.

[00:34:46] Speaker 02:
I think that's very clear.

[00:34:47] Speaker 02:
It's very clear from the cases we cited, and if I may, Your Honor, you were on the panel in the other Lopez, Romero Lopez and Latino Express, and the same issue arose there.

[00:35:00] Speaker 02:
It's clear that the NLRB

[00:35:01] Speaker 02:
looks at these petitions, these motions to intervene in a very haphazard way.

[00:35:07] Speaker 02:
One ALJ will say yes.

[00:35:08] Speaker 08:
But you know I'm giving you the pen and I'm saying what do you recommend?

[00:35:11] Speaker 08:
I get that there's, it's hard to discern.

[00:35:14] Speaker 08:
I hear that argument loud and clear.

[00:35:18] Speaker 08:
I'm just trying to figure out if you're asking us as a court to say

[00:35:23] Speaker 08:
They didn't hew to the law here.

[00:35:25] Speaker 08:
What is the standard that's not gonna have all the employees in there?

[00:35:29] Speaker 08:
What's the legal rule you want, not the one the board has?

[00:35:33] Speaker 02:
I would say certainly if the decertification petitioner or the proponent of the withdrawal petition attempts to intervene to protect that petition that he collected, he absolutely, he or she absolutely should be entitled to intervene.

[00:35:51] Speaker 08:
Again, what would the opinion say to distinguish why every employee, imagine you got, there's some great big companies out there, you have thousands of employees and every one of them, how would we say no, you don't get to, but the five people or the 20 people that helped to collect this get to?

[00:36:09] Speaker 02:
I think the answer that I would give you is now we're at the adequate representation prong of Federal Rule of Civil Procedure 24, assuming we're applying that by analogy.

[00:36:20] Speaker 02:
In other words, if I represent Mr. Lopez and I file a motion to intervene and now I'm representing Mr. Lopez,

[00:36:28] Speaker 02:
and 27 other employees separately try to intervene, at that point, the ALJ could say, well, you are represented by Mr. Lopez and his attorney, so now we have a duplication here.

[00:36:44] Speaker 02:
And there is already adequate representation.

[00:36:48] Speaker 02:
But as far as Mr. Lopez is concerned, there's never been adequate representation in this case.

[00:36:53] Speaker 02:
But I think that's the answer to your honor's question.

[00:36:56] Speaker 02:
At a certain point, the ALJ is entitled to say there's already adequate representation, so we don't need 900 signature signers to come in.

[00:37:08] Speaker 02:
But as long as we have this one person who did file a motion to intervene, who has an attorney, and

[00:37:14] Speaker 02:
In answer, I think, to one of Judge Pollard's questions, Mr. Lopez was physically at the hearing at his own time and expense.

[00:37:24] Speaker 02:
He showed up at the hearing with his lawyer.

[00:37:26] Speaker 02:
He sat through quite a bit of the hearing.

[00:37:29] Speaker 02:
At a certain point, when it was obvious that he couldn't intervene and he wasn't going to be called, he went back to work his shift.

[00:37:36] Speaker 02:
Now, there was discussion colloquy at the end.

[00:37:40] Speaker 02:
He could have been called back the next day.

[00:37:43] Speaker 02:
It was already late in the day.

[00:37:44] Speaker 02:
They could have suspended the hearing and said, OK, Mr. Lopez, come back tomorrow.

[00:37:48] Speaker 02:
The ALJ even could have reconsidered his decision to exclude Mr. Lopez.

[00:37:56] Speaker 02:
And there's testimony in the record that everyone recognizes, or it's a colloquy at the end.

[00:38:02] Speaker 02:
Everyone recognizes that Mr. Lopez had a lot of valid and valuable information to give.

[00:38:09] Speaker 05:
Can I ask one little question about, you mentioned in the briefing, it was page three of your brief, that you filed exceptions on Mr. Lopez's behalf.

[00:38:20] Speaker 05:
I don't think we have those in the appendix.

[00:38:22] Speaker 05:
Are those available to us?

[00:38:23] Speaker 02:
Exceptions to the board.

[00:38:25] Speaker 02:
Yeah.

[00:38:28] Speaker 05:
And can you tell us on what grounds you accepted that are relevant here?

[00:38:32] Speaker 02:
I think the grounds that I accepted are basically the same grounds as we raised in the motions to intervene, frankly.

[00:38:39] Speaker 02:
I think I raised the same argument that the judge aired this matter of law by not allowing us to intervene.

[00:38:47] Speaker 02:
If they're not in the record, I mean, I can find them and supply them if you're interested, but I think they're functionally the same arguments that were made in support of the motion to intervene.

[00:39:00] Speaker 02:
Great.

[00:39:00] Speaker 02:
Thank you very much.

[00:39:01] Speaker 02:
Thank you, Your Honors.

[00:39:15] Speaker 04:
Good morning.

[00:39:16] Speaker 04:
Good morning.

[00:39:17] Speaker 04:
Barbara Shaheed for the National Labor Relations Board.

[00:39:19] Speaker 04:
I'm just going to answer very quickly.

[00:39:21] Speaker 04:
The exceptions, you're right, are not in the record that were filed by Mr. Lopez.

[00:39:26] Speaker 04:
And it was limited strictly to the issue of intervention.

[00:39:28] Speaker 04:
They did file exceptions before the board, though.

[00:39:30] Speaker 04:
And I'm happy to provide that to the board and transmit that.

[00:39:33] Speaker 04:
It's a short document.

[00:39:34] Speaker 04:
I saw it this morning.

[00:39:35] Speaker 04:
I'm going to start with what was the very first question I'd like to offer my answer.

[00:39:39] Speaker 04:
Your Honor asked, laying out that we had this sort of inartful colloquy towards the end of the hearing, what do we do with this?

[00:39:49] Speaker 04:
And what do we do when there are inartful statements between everybody I think involved, both the general counsel, the union attorney, the attorney for the hospital, and the ALJ?

[00:39:58] Speaker 04:
And I think what we do with that is we hold a prudent counsel to preserve a record for appeal.

[00:40:08] Speaker 04:
There is not a definitive ruling on this record.

[00:40:12] Speaker 04:
The ALJ did not say you cannot introduce respondent exhibit number eight.

[00:40:17] Speaker 04:
You cannot introduce that petition.

[00:40:20] Speaker 04:
What we have is, again, many in our full statements, but we had also, at the hearing at the time, was the HR representative, Shop Miller, I think is the name, who by all accounts was the one who received the document.

[00:40:33] Speaker 04:
and we read the transcript with the ALJ the same way that your honor did, Judge Griffith, that there were two alternatives.

[00:40:40] Speaker 04:
You had to authenticate the document.

[00:40:42] Speaker 04:
Because let's remember how this conversation, that we're all looking at the 10 to 12 pages toward the end, it came about because the hospital attorney said we would like to enter this document into evidence,

[00:40:53] Speaker 04:
I'd like a stipulation, the general counsel, as to its authenticity.

[00:40:58] Speaker 04:
The general counsel and the union were both uncomfortable with stipulating to the document for various reasons.

[00:41:04] Speaker 04:
So then followed the conversation about how does this document come in.

[00:41:08] Speaker 04:
And there were some, again, inartful legal statements.

[00:41:11] Speaker 04:
But at the end of the day, the hospital representative was not

[00:41:15] Speaker 04:
prevented from entering that document into evidence.

[00:41:19] Speaker 04:
In fact, the very last thing the judge says before ultimately the hospital, I guess, decides to rest its case, the ALJ says, and this is on Joint Exhibit 405,

[00:41:32] Speaker 04:
you have to have.

[00:41:33] Speaker 04:
It's did you have proof that the union had lost the majority?

[00:41:37] Speaker 04:
Now, maybe you can establish that.

[00:41:38] Speaker 04:
Maybe you did that.

[00:41:39] Speaker 04:
I don't know.

[00:41:40] Speaker 04:
I'll give you an opportunity to show it.

[00:41:42] Speaker 04:
So that's where I'm going with that with respect to Rx eight, which is the petition.

[00:41:46] Speaker 04:
That's something that respondents witnesses will have to establish.

[00:41:50] Speaker 04:
So at that point, the door is wide open.

[00:41:53] Speaker 04:
for the hospital attorney to formally, on the record, introduce either through Shotmiller, or I understand Mr. Lopez at this point, had left.

[00:42:02] Speaker 04:
But there's no indication, for instance, this ALJ wasn't willing, there's no indication that the hearing couldn't be put over for another day or until Mr. Lopez was available.

[00:42:10] Speaker 04:
So certainly the opportunity was there and the door was left wide open.

[00:42:14] Speaker 04:
And what this council opted to do instead was,

[00:42:17] Speaker 04:
rest.

[00:42:18] Speaker 04:
So we do not have a clear record on appeal of what the ALJ would have formally done if presented with the petition.

[00:42:25] Speaker 04:
Would the inaugural statements have carried the day or would briefing on the issue resulted in the admission of the document?

[00:42:31] Speaker 04:
So I think that I wanted to start with the very first question.

[00:42:34] Speaker 09:
That's really helpful.

[00:42:36] Speaker 04:
And then

[00:42:39] Speaker 04:
So unless there are any, so I'm gonna sort of move through the three different, so one of the other first things I should have said is, and I think your honors all recognize this, there are three independent septic rounds for upholding the board's finding that the employer unlawfully withdrew.

[00:42:52] Speaker 04:
All of them stand on their own, they're not interdependent.

[00:42:55] Speaker 04:
So this one about the lack of support, showing actual loss of majority support is one example.

[00:43:01] Speaker 04:
So I'll move into, I'll sort of track the, sorry, go ahead.

[00:43:05] Speaker 05:
On the, I think it's the second round of decision, the certification date, I'm trying to figure out whether that really satisfies all of Mr. Lopez's arguments.

[00:43:15] Speaker 05:
Does it foreclose any claim he might have as to prejudice?

[00:43:20] Speaker 05:
Is it your position that no testimony that he might have presented would have made a difference with respect to the timing

[00:43:35] Speaker 04:
I think what the board does when they look at, when they're trying to determine whether or not another party should be granted intervener status.

[00:43:44] Speaker 04:
So I think what they do do, actually, is what respectfully counsel for Mr. Lopez said is, what he's recommending is we should look at adequacy of representation.

[00:43:54] Speaker 04:
And I think just by another name, that's what the board is doing.

[00:43:57] Speaker 04:
They look at, under the rules, are your interests protected?

[00:44:02] Speaker 05:
But I might say even narrower question.

[00:44:05] Speaker 05:
Sure.

[00:44:06] Speaker 05:
the board was right about the certification year.

[00:44:09] Speaker 05:
Then I see there's no prejudice one way or the other.

[00:44:13] Speaker 05:
Let them come in and testify till the cows come home.

[00:44:16] Speaker 05:
But it's just as a legal matter.

[00:44:18] Speaker 04:
It's just foreclosed.

[00:44:21] Speaker 04:
Absolutely.

[00:44:21] Speaker 04:
He is absolutely one day short of a year.

[00:44:24] Speaker 04:
You know, I mean,

[00:44:25] Speaker 04:
with the exception like the LTD ceramics, but sort of speaking globally in terms of withdrawal, the certification year holds for 365 days.

[00:44:33] Speaker 04:
Yes.

[00:44:34] Speaker 04:
And then if the withdrawal occurred before that, the petition, Your Honor is absolutely correct, does not matter.

[00:44:44] Speaker 04:
The petition does not matter if it

[00:44:46] Speaker 04:
If the withdrawal occurred and the signatures were all, so this is what puts it on a different footing than LTD ceramics.

[00:44:53] Speaker 04:
In LTD ceramics, several of the signatures in that case were obtained at the tail end of the certification period, so during the barred time, but then the majority of them actually occurred outside that window.

[00:45:05] Speaker 04:
Here we know every single one of them had to have been obtained before the employer withdrew recognition.

[00:45:10] Speaker 04:
So that puts it on a very different footing, and it's not, I mean, de minimis doesn't make

[00:45:14] Speaker 04:
sense in this context, right, de minimis in the context is de minimis how many of those signatures really at the end of the day only came during the small window of time, during the window of time where you shouldn't have gathered them.

[00:45:24] Speaker 04:
And are they small enough so that we're going to let the petition go forward?

[00:45:28] Speaker 04:
That is not de minimis here when every single one of them, all 71 of them were collected during the window of a barred period.

[00:45:34] Speaker 05:
So it's your position that even if it was a week later, if they presented this petition,

[00:45:39] Speaker 05:
it would be barred because the timing of the collection of the signatures matters for purposes of the bar?

[00:45:46] Speaker 04:
If it was shown, certainly, that the petition, and this gets to the authenticity of the documents, if it is shown that at the time the employer withdrew, no, sorry, to your question about the collection of the signatures, yes, if they were collected during the period during which you are not permitted to do that, then yes, the withdrawal based on that under the case law is

[00:46:08] Speaker 04:
with the exception of LTD.

[00:46:09] Speaker 04:
So again, you get into where some of them collected during the bar period, some of them after.

[00:46:13] Speaker 04:
But if all of them are, there's not a case that suggests that that falls under the board's exception under the de minimis standard of we're going to permit this because it was at the tail end.

[00:46:24] Speaker 04:
So yes, currently there's no case to hold that even if all of them are collected, but just at the very end, that's OK.

[00:46:30] Speaker 04:
There's no case that says that.

[00:46:31] Speaker 04:
And the board certainly doesn't say that here.

[00:46:33] Speaker 05:
And it's not just a question of the employer being barred.

[00:46:37] Speaker 05:
the inquiry into member support is just kind of put on hold for that whole period?

[00:46:42] Speaker 04:
Sort of a formal process under 9C, which Your Honor talked about a little bit with counsel for Mr. Lopez, that yes, you do have to stop short.

[00:46:53] Speaker 04:
So there are rights protected under 9C, but those are curtailed during a very defined period of time.

[00:46:59] Speaker 04:
He could have gone around, and he can still do this now, and tell everybody how much he doesn't think the union's any good.

[00:47:05] Speaker 04:
I don't think the union's doing anything for me.

[00:47:06] Speaker 04:
I think negotiations are dragging on.

[00:47:08] Speaker 04:
They're terrible.

[00:47:08] Speaker 04:
What he has to stop short of, though, is actually formally engaging in a decertification petition and collecting signatures in that regard.

[00:47:15] Speaker 05:
He couldn't do that in 9C.

[00:47:16] Speaker 05:
He can't do that as an intervener.

[00:47:18] Speaker 05:
Is that what you're saying?

[00:47:19] Speaker 05:
He cannot, not during the certification year.

[00:47:22] Speaker 04:
Under the certification year, that's correct.

[00:47:23] Speaker 08:
Could he have done it the day after?

[00:47:25] Speaker 08:
He could do it the day after, certainly.

[00:47:26] Speaker 08:
In this case, he says there would have been yet another bar because of the un-remedied labor practices.

[00:47:31] Speaker 04:
Due to the unique circumstances of this case, so the blocking charges were absolutely correctly... So he could do it now that my circuit is ruled on the un-remedied labor practices?

[00:47:41] Speaker 04:
not if the board's decision, not if this decision is enforced because the board imposed an affirmative bargaining order.

[00:47:49] Speaker 08:
How are employees supposed to know when they can do this?

[00:47:53] Speaker 08:
Is it posted somewhere?

[00:47:54] Speaker 08:
I came for the life and figured out when they can do it.

[00:47:57] Speaker 04:
So how are people supposed to know when they can go for it?

[00:47:59] Speaker 04:
I appreciate that.

[00:48:00] Speaker 04:
But the decisions themselves and the notices, or the notice, the notice posting would

[00:48:06] Speaker 04:
It's supposed to on employee bulletin boards.

[00:48:08] Speaker 04:
It's a standard remedy.

[00:48:09] Speaker 08:
Does it tell them when the decertification year ends?

[00:48:12] Speaker 04:
Well, I don't know.

[00:48:12] Speaker 04:
It's not going to use a term like that.

[00:48:14] Speaker 04:
But I believe it's going to, I believe the affirmative bargaining order, which is part of the order itself, the notice that would get posted, says six months from the date of enforcement.

[00:48:24] Speaker 04:
So you'd have to do a little research to say, OK, well, when did the, I know it's six months.

[00:48:26] Speaker 08:
Yeah, but I just don't want to know if there's some other litigation out there, and I don't remember any practices.

[00:48:30] Speaker 08:
It just seems a bit- I don't know.

[00:48:31] Speaker 04:
I mean, I think- Well, isn't this a concern to the board?

[00:48:35] Speaker 04:
No, because you could certainly ask.

[00:48:37] Speaker 04:
I say I don't know in the sense that I don't know what each individual union does to communicate with its members.

[00:48:42] Speaker 04:
So like it or not, Mr. Lopez is still part of this union, because he's represented by them.

[00:48:47] Speaker 04:
I know he doesn't want to be.

[00:48:49] Speaker 04:
So I have no idea what their communication practices are.

[00:48:52] Speaker 04:
But it's possible this union communicated.

[00:48:53] Speaker 08:
So he has to ask them when I can decertify you?

[00:48:55] Speaker 08:
I'm sorry?

[00:48:55] Speaker 08:
He has to ask the union when I can decertify you?

[00:48:58] Speaker 04:
No, no, what I'm saying is it's possible.

[00:48:59] Speaker 04:
So I had a totally different life outside this record.

[00:49:01] Speaker 04:
I have experience with union communications.

[00:49:03] Speaker 04:
I've seen them.

[00:49:04] Speaker 04:
And those go to everybody, everybody in the bargaining unit, whether you want to be there or not.

[00:49:08] Speaker 04:
So I'm just saying I don't know with this particular how this union communicates with its employees or whether it does in what regard.

[00:49:15] Speaker 05:
So they might be saying, you know, we're bargaining away, we're making some progress, we're going to get you something final by

[00:49:21] Speaker 05:
end of certification year, that date, is this such and such?

[00:49:25] Speaker 04:
Absolutely.

[00:49:26] Speaker 04:
Right, so it's possible, you know, it wouldn't surprise, I'm not even gonna go that far, so I'm just gonna say I don't know about this.

[00:49:31] Speaker 10:
You said you have three independent grounds.

[00:49:33] Speaker 10:
Right, so the certificates, so we just- Yeah, what's your strongest?

[00:49:36] Speaker 10:
I didn't think it was this.

[00:49:37] Speaker 04:
The certification year?

[00:49:38] Speaker 10:
Yeah, I thought your taint argument was the strongest one.

[00:49:40] Speaker 04:
Well, if that's the one you like, then I'll... No, no, I'm not saying I like, but I'm just surprised that maybe she's because of response to the questioning, but... Sure, it is, you're right, so there were very few questions on the taint.

[00:49:50] Speaker 04:
I don't know that I... I don't know that the board... You like them all, you like them all.

[00:49:55] Speaker 04:
I like them all, because the board found... I don't think the board gives any indication that it felt like the evidence was stronger here.

[00:50:00] Speaker 04:
They led with the taint argument, that was the first one.

[00:50:02] Speaker 08:
How was Master Slack's direct causation requirement met with respect to these

[00:50:06] Speaker 08:
So it's a causal link.

[00:50:08] Speaker 04:
It's not a direct causation.

[00:50:10] Speaker 04:
And the board, what they did here is they looked at the particular violations.

[00:50:15] Speaker 04:
And I really, I don't know that we did it in the brief.

[00:50:18] Speaker 08:
The violations were six years old?

[00:50:20] Speaker 04:
I'm sorry?

[00:50:21] Speaker 08:
The violations were six years old?

[00:50:22] Speaker 04:
No, it happened in 2010.

[00:50:24] Speaker 04:
They happened during the organizing drive of 2010.

[00:50:26] Speaker 04:
OK, so three years.

[00:50:27] Speaker 04:
Three years, right.

[00:50:28] Speaker 04:
And I urged the court.

[00:50:29] Speaker 04:
I don't know.

[00:50:30] Speaker 04:
We sent it in in the 28-J, the ninth circuit.

[00:50:33] Speaker 04:
decision that just recently got enforced in September.

[00:50:35] Speaker 04:
This is not a matter of isolated, minimal things.

[00:50:39] Speaker 04:
There were over 18 violations, some as extraordinary as, or as extreme rather, as threatening to close the whole hospital if the union came in.

[00:50:49] Speaker 04:
They discharged the highest level organizing person there, who the chief medical officer.

[00:50:54] Speaker 08:
I get that, I get that.

[00:50:57] Speaker 08:
Have the ALJ said what the 9th Circuit said?

[00:51:00] Speaker 08:
That might be different.

[00:51:01] Speaker 08:
What the ALJ said was these are of the sort that cause disaffection among employees.

[00:51:08] Speaker 08:
And that's all I could find on the causal link.

[00:51:12] Speaker 08:
Is that enough?

[00:51:13] Speaker 04:
So what I think the board does is they cite to, and this was probably just for purposes of efficiency, they cite to the original, I guess it's being called Veritas III, I think, it's the ULP case that happened in the Ninth Circuit.

[00:51:25] Speaker 04:
They cite to that case, they do the, to the board decision, sorry, the board decision in that case with a pinpoint, I think,

[00:51:32] Speaker 04:
I think, with a pinpoint site that articulates, in that case, the violations.

[00:51:38] Speaker 04:
So the ALJ then is shorthanding to say those types of violations are particularly egregious and result in employee disaffection because... For how long?

[00:51:48] Speaker 04:
Well, so until they're on remedy, because those are.

[00:51:51] Speaker 08:
Okay, so what does it mean that they're on remedy?

[00:51:53] Speaker 08:
Does that mean some of them were still going on, or they just hadn't?

[00:51:56] Speaker 04:
So it means, for instance, the Hallmark one, the true Hallmark violation, was the discharge of the union person.

[00:52:04] Speaker 08:
Right, and that was over and done.

[00:52:06] Speaker 04:
So it hasn't been Bremen in the sense, he still hasn't been reinstated.

[00:52:09] Speaker 04:
He hasn't been reinstated.

[00:52:12] Speaker 04:
Is the tardiness policy still in effect?

[00:52:14] Speaker 04:
To my knowledge, this isn't in the record,

[00:52:17] Speaker 04:
to my knowledge, none of the as it could be different now that the Ninth Circuit has spoken up until September 2017.

[00:52:25] Speaker 04:
None of those have been changed, retracted.

[00:52:30] Speaker 04:
Nobody had been reinstated.

[00:52:31] Speaker 04:
None of that.

[00:52:32] Speaker 05:
So that's a bargain agreement in place.

[00:52:34] Speaker 05:
I'm sorry.

[00:52:35] Speaker 05:
And the collective bargaining agreement has not been finalized and it's not in place.

[00:52:38] Speaker 04:
Well, it was final in the board's view, except for the effective date.

[00:52:42] Speaker 05:
And it hasn't been effective.

[00:52:44] Speaker 04:
No, because they've withdrawn recognition.

[00:52:46] Speaker 04:
So this started in 2010 with a refusal, I was involved in that case in 2010, with a refusal to recognize the union after the election.

[00:52:54] Speaker 04:
And then we hit a series of 18-month labor practices.

[00:52:56] Speaker 04:
We've litigated that.

[00:52:57] Speaker 04:
And then right when they're on the cost of a collective bargaining agreement, we have a withdrawal of recognition.

[00:53:01] Speaker 04:
And that's where we are.

[00:53:02] Speaker 05:
Let me ask you just a legal question about master slack.

[00:53:04] Speaker 05:
Is it the board's position that when

[00:53:07] Speaker 05:
first three factors are established as the ALJ and the board held here, that it is irrelevant whether there's anything one way or the other on the fourth factor or only that the fourth, that there needn't be anything.

[00:53:22] Speaker 05:
Like if there were some showing, some evidence, I can't come up with a good hypothetical, but showing a lack of causation under the fourth, does the board have to go to the fourth factor or is it just like, no, we've got the first three?

[00:53:37] Speaker 04:
I think all four factors enter in.

[00:53:40] Speaker 04:
So the first three are objective.

[00:53:42] Speaker 04:
And that's why you have them looking at just generally what the violation was, the unremitting violations they're looking at.

[00:53:48] Speaker 04:
So they're like, OK, discharge.

[00:53:50] Speaker 04:
We know that that tends to live very long in people's memories.

[00:53:52] Speaker 04:
I'm going to lose my job if I do that.

[00:53:54] Speaker 04:
So the first three are objective.

[00:53:55] Speaker 04:
So it's all four still.

[00:53:56] Speaker 04:
The board will still look at all four.

[00:53:58] Speaker 04:
The fourth factor is the only one that is subjective in the sense that was there disaffection among this unit?

[00:54:07] Speaker 04:
And I know that there's, I would say it's not so subjective as particular.

[00:54:11] Speaker 04:
Perhaps you have subject, I jumped subjective because I said objective, but you're right, specific to this case as opposed to.

[00:54:17] Speaker 05:
And what would be the evidence that would show lack of causation in under four?

[00:54:23] Speaker 05:
I'm just trying to think of what, you know, because we, I mean, we really have to be sensitive to the procedural rights of

[00:54:29] Speaker 05:
the employer and of the disaffected employees.

[00:54:33] Speaker 05:
And so I'm just really trying to get at what opportunities might they have missed to put in what kind of evidence.

[00:54:42] Speaker 04:
My answer is going to stem from I'm thinking of the opposite of what was introduced.

[00:54:46] Speaker 04:
So what we had here, which the board determined was sufficient under the fourth prong, was the union official testifying not only to the slow walking of the contract negotiations, but she also said as a union organizer in the facility that she felt like nobody trusted her anymore, that she was isolated, that nobody trusted the union, nobody would speak to her anymore.

[00:55:07] Speaker 04:
So that was, for the board's purposes,

[00:55:11] Speaker 04:
sufficient to show disaffection under the fourth prong.

[00:55:14] Speaker 04:
So to answer your question, I guess I would think perhaps the opposite of that.

[00:55:19] Speaker 04:
So if you could call witnesses who said, we don't like, I'm trying to think what they would be saying, we don't like the union and we don't want the union because

[00:55:36] Speaker 04:
I don't know, they're just, are they?

[00:55:37] Speaker 05:
Well, they say they have that here, where they say nothing's happening, which is a little tough to know how to credit that, because, yeah, nothing is happening, because everything's been tied up in litigation.

[00:55:48] Speaker 04:
Right, and so that's one point we make in the brief, is that, sure, you can be critical of the pace of negotiations, but how do you untangle the pace of negotiations that's directly reflective of they couldn't get to the table in 2012 because of all the ongoing litigation?

[00:56:05] Speaker 04:
So I think that's why it's a relatively, I think that's why the board here said, okay, not only do we have that and it's difficult to untangle, like what does it mean when people are frustrated with the pace of negotiations?

[00:56:19] Speaker 04:
Is that the union's failure as a negotiator or is that the failure of this to be moving forward because of continued unfair labor practices and the inability of the union to go forward?

[00:56:29] Speaker 04:
So instead of just focusing on that one thing she said, they looked at the other things that she said, which was generally a disaffection among what had been a different environment three years prior.

[00:56:39] Speaker 10:
OK, let's hear from counsel for the interview now.

[00:56:41] Speaker 10:
Thank you very much.

[00:56:42] Speaker 04:
I'm going to ask for full enforcement.

[00:56:44] Speaker 04:
Thank you.

[00:56:44] Speaker 03:
Good morning.

[00:56:52] Speaker 03:
May it please the court, Pamela Chandran for the union.

[00:56:56] Speaker 03:
I'd like to go back to the question of whether there was actually a delay of 12 weeks or whether it's more accurately characterized as proper preparation for negotiations after a period of several years in which the union has not been allowed to interact with its members because the employer has kept the union out of the hospital and because the turnover has been so high.

[00:57:16] Speaker 03:
Between the time of the election and the time of bargaining began, there had been 50% turnover, which is probably a conservative estimate because it doesn't take into account people who may have been employed subsequent to the election and left prior to negotiations beginning.

[00:57:33] Speaker 03:
The union was effectively starting from zero.

[00:57:36] Speaker 03:
Usually when you're beginning initial contract bargaining, you are coming off a period of momentum from the initial organizing efforts.

[00:57:43] Speaker 03:
Here, the union had to reintegrate itself into meeting the nurses.

[00:57:47] Speaker 03:
It had to learn what the issues were with the nurses.

[00:57:50] Speaker 03:
It required those 12 weeks to properly and effectively bargain for the nurses.

[00:57:57] Speaker 03:
As noted, there was constant communication between the unions negotiator and shot Miller, the negotiator for the employer in which shot Miller was.

[00:58:06] Speaker 05:
uh... amicably agreeing to dates to the progress and was getting regular updates what's their evidence in the record of any of that of the what the union was doing during that time collective bargaining priorities getting back in touch getting information on new employees is there any evidence of any of that?

[00:58:28] Speaker 03:
Yes, your honor, there are the union informed the employer of certain steps it was taking for which it required the employers cooperation.

[00:58:36] Speaker 03:
So if you look at joint exhibits 10 through 13, roughly, those are communications between the union, the unions negotiator and shop Miller.

[00:58:44] Speaker 03:
where they are coming up with bargaining dates, where they're deciding the logistics of bargaining, such as, do we do it in a hospital?

[00:58:52] Speaker 03:
Do we do it in a hotel?

[00:58:54] Speaker 03:
How are we splitting the costs for this?

[00:58:56] Speaker 03:
There are the typical preparations between two parties for negotiations.

[00:59:00] Speaker 03:
You have the union informing.

[00:59:03] Speaker 03:
Schottmiller here is the bargaining team that has been elected from the bargaining unit.

[00:59:08] Speaker 08:
How big was the bargaining unit?

[00:59:10] Speaker 08:
Or was it a bargaining unit at that relevant time?

[00:59:12] Speaker 08:
How big was it?

[00:59:12] Speaker 03:
It's approximately 100, I believe.

[00:59:16] Speaker 03:
Nurses and then the bargaining team comprised five nurses, all of whom needed to be released.

[00:59:22] Speaker 03:
That's typical with the hospital bargaining unit and required to be prepared because nurses are not trained bargainers and they need a little boost.

[00:59:33] Speaker 10:
Thank you very much.

[00:59:34] Speaker 03:
There are no more questions.

[00:59:36] Speaker 10:
Thank you.

[00:59:37] Speaker 10:
How much time does Mr. Conn have?

[00:59:40] Speaker 10:
Give you two minutes.

[00:59:41] Speaker 10:
Okay.

[00:59:49] Speaker 01:
I'd like to start, Your Honors, where Judge Pollard, you were asking the general counsel at the end of her argument, well, there are four factors under Master Slack.

[00:59:59] Speaker 01:
Perhaps the first three are subjective, but the fourth talks to how were the employees actually affected by the ULPs here three years earlier?

[01:00:11] Speaker 01:
And you asked, well, what could we show?

[01:00:14] Speaker 01:
Well, you could show that in June 2012, there was an active, engaged union with bargaining unit members who were at the table, who were asked questions by the rest of the bargaining unit, and were encouraging and supporting the union.

[01:00:32] Speaker 01:
And then perhaps you could have testimony that after 12 months of bargaining,

[01:00:37] Speaker 01:
those same exact people who just 12 months earlier were actively supporting, no longer supporting the union.

[01:00:43] Speaker 01:
They thought bargaining was taking too long.

[01:00:46] Speaker 01:
They thought the union wasn't doing a good job representing them.

[01:00:50] Speaker 01:
That, to me, shows a change in perspective from that bargaining unit.

[01:00:54] Speaker 01:
And that's exactly what we have here.

[01:00:57] Speaker 01:
The general counsel's own witness, who is a UNAC employee, not a bargaining member, a UNAC employee responsible for maintaining the relationship,

[01:01:06] Speaker 01:
testified that when she returned from attorney leave, she left from attorney leave in mid-2012, returned in mid-2013, essentially missed the bargaining, that there was a almost 180 degree change in the bargaining unit.

[01:01:19] Speaker 01:
People were not interested.

[01:01:21] Speaker 01:
Bargaining unit members attributable to slow moving negotiations, high employee turnover, and employees not trusting the union to represent them.

[01:01:31] Speaker 01:
That was her testimony based on her communications with members of the bargaining unit.

[01:01:36] Speaker 01:
In 2012, two years after the ULPs, everyone loves the union.

[01:01:40] Speaker 01:
2013, three years after the ULPs, things have changed.

[01:01:44] Speaker 01:
Nothing to do with the ULPs.

[01:01:45] Speaker 05:
How do we know everyone loves it in 2012?

[01:01:47] Speaker 05:
What's the testimony everyone's loving it in 2012?

[01:01:52] Speaker 01:
She testifies

[01:01:54] Speaker 01:
I'm at 156 of the transcript, line 20.

[01:01:59] Speaker 01:
Yes, before I went out on maternity leave, they were very active.

[01:02:04] Speaker 01:
They were at negotiation sessions and passing out literature to pass out for them.

[01:02:08] Speaker 01:
And then she goes on to talk about why those people are not active over the next 10 years or so.

[01:02:14] Speaker 01:
I'm sorry, where are you reading from?

[01:02:15] Speaker 01:
I'm sorry, Your Honor.

[01:02:17] Speaker 01:
The transcript, page 156, I don't think I have.

[01:02:22] Speaker 05:
So it's JA377?

[01:02:25] Speaker 01:
It might be 387, Your Honor.

[01:02:33] Speaker 05:
156, would you say?

[01:02:35] Speaker 01:
Yeah, I'm sorry, I'm looking at page, yeah.

[01:02:37] Speaker 05:
Yeah, I think it's ours.

[01:02:38] Speaker 05:
It's paginated 377.

[01:02:40] Speaker 01:
Okay, yeah, I see the very bottom.

[01:02:41] Speaker 01:
Yes, that's where it is, Your Honor.

[01:02:42] Speaker 01:
And this testimony of the next 10 pages where, again, she's talking about meeting other employees who were actively interested, supported the union, but they backed away.

[01:02:51] Speaker 01:
They no longer trust the union.

[01:02:53] Speaker 01:
They did not talk to her because they didn't want the union anymore, which is what we find out is the case from Mr. Lopez's decertification petition.

[01:03:01] Speaker 01:
That change has nothing to do with the ULPs.

[01:03:03] Speaker 01:
They support the union in 2012.

[01:03:06] Speaker 01:
They don't in 2013.

[01:03:06] Speaker 01:
That is exactly the evidence, Your Honor, is asking for.

[01:03:11] Speaker 01:
And it was presented here.

[01:03:12] Speaker 01:
Unlike the cases that the board relies on where there was no evidence to support the fourth factor, and the board says, look, where there's no evidence on the fourth factor, we just look at the other three,

[01:03:21] Speaker 01:
Here there was clear evidence.

[01:03:25] Speaker 01:
I'm sorry.

[01:03:26] Speaker 07:
Who was very active?

[01:03:27] Speaker 07:
I thought it was the Union.

[01:03:28] Speaker 07:
I thought she was describing the Union as being very active.

[01:03:31] Speaker 07:
in 2012, which they should have been.

[01:03:33] Speaker 01:
If you continue reading up at line three, why were you asking about those three?

[01:03:39] Speaker 01:
They were the kind of secondary leaders next to Marlene, who was the head of the bargaining unit leadership.

[01:03:44] Speaker 01:
So when she's saying they, had they attended union meetings and negotiation sessions, et cetera, they were very active.

[01:03:50] Speaker 01:
She goes on to say, no, they're not active anymore.

[01:03:53] Speaker 07:
That's those three people?

[01:03:54] Speaker 01:
Those three.

[01:03:54] Speaker 01:
And then she talks about somebody else

[01:03:58] Speaker 01:
She talks about phone banking on the next page of the transcript at the end.

[01:04:01] Speaker 01:
I was supposed to call all the nurses and give them status.

[01:04:05] Speaker 01:
People weren't returning my phone calls anymore.

[01:04:07] Speaker 01:
The conversations, this is the next page, the conversations I'm having are very different.

[01:04:11] Speaker 01:
People are either ignoring me entirely, giving me one word responses.

[01:04:15] Speaker 01:
Very different than when I left in mid-2012, than how people treated me in mid-2013.

[01:04:22] Speaker 01:
And the difference there is a year of bargaining.

[01:04:25] Speaker 01:
Not ULPs.

[01:04:27] Speaker 01:
The ULPs are two, three years prior.

[01:04:30] Speaker 01:
So you've got people who have disaffection from the union representing them.

[01:04:34] Speaker 01:
No other reason.

[01:04:34] Speaker 01:
It's the only thing we have on the record.

[01:04:37] Speaker 01:
And the other point that's important to make here, which I didn't get to touch on earlier, is you've got 12 months of good faith bargaining.

[01:04:45] Speaker 01:
The ALJ says, unequivocally, it's good faith bargaining.

[01:04:48] Speaker 01:
This is not slow walking bargaining.

[01:04:50] Speaker 01:
25 bargaining sessions.

[01:04:51] Speaker 01:
That's two a month.

[01:04:53] Speaker 01:
straight through for twelve months, to the point there were only three outstanding issues.

[01:04:58] Speaker 01:
That should have been determined to remedy any ULPs.

[01:05:02] Speaker 01:
If you look at Lee Lumber, when the board says, Lee Lumber too, the board says even the worst of ULPs for un-remedy ULPs in this context, which is entirely withdrawal, which you can't remedy otherwise, bargaining remedies that.

[01:05:22] Speaker 01:
Here we've got 12 months of unequivocal good faith bargaining.

[01:05:26] Speaker 01:
The only thing these employees knew, you know, that the union just stated that it was a more than 50% turnover.

[01:05:34] Speaker 01:
The only thing most of these employees knew was a union that was bargaining.

[01:05:39] Speaker 01:
They didn't know about ULPs or care about ULPs from 2010.

[01:05:41] Speaker 01:
They cared about ineffective bargaining.

[01:05:44] Speaker 01:
Thank you, Your Honors.

[01:05:45] Speaker 10:
We have your argument.

[01:05:47] Speaker 10:
Mr. Totten, we'll give you a minute.

[01:05:54] Speaker 02:
On the master slack factor four, this is precisely why Mr. Lopez should have been allowed to intervene.

[01:06:01] Speaker 02:
In answer to Judge Pollard's question, what kind of testimony would an employee have given if you look at Mr. Lopez's declaration in support of his motion to intervene, which is JA 62, he says, quote,

[01:06:15] Speaker 02:
I have never supported UNAC because I believe the nurses at Chino Valley are treated fairly and well and therefore need no outside agent to speak for us.

[01:06:25] Speaker 02:
So his testimony and some of his coworkers would have been, we've been opposed to this union from the day they walked onto the property.

[01:06:32] Speaker 05:
Yeah, I'm not sure that you need to intervene though to give that kind of testimony.

[01:06:37] Speaker 05:
You can be called by the employer, no?

[01:06:38] Speaker 02:
Well, the employer didn't call him.

[01:06:40] Speaker 02:
That's the point.

[01:06:41] Speaker 02:
It's Mr. Lopez's Section 7 right, and this is precisely why... So every employee who's not called gets to come intervene?

[01:06:48] Speaker 02:
Well, Mr. Lopez is the petitioner.

[01:06:51] Speaker 02:
He stood up.

[01:06:52] Speaker 02:
I'm not necessarily saying every employee needs to come in, but the fact is Mr. Lopez did come in with his attorney and went to the hearing.

[01:07:03] Speaker 02:
There weren't 92 other employees there willing to give this testimony.

[01:07:07] Speaker 02:
There was Mr. Lopez, the proponent of the petition.

[01:07:10] Speaker 02:
He was there.

[01:07:11] Speaker 02:
And that's the standard by which the court has to look at the intervention issue.

[01:07:15] Speaker 02:
Thank you very much.

[01:07:16] Speaker 02:
Thank you very much, Your Honor.

[01:07:17] Speaker 10:
The case is submitted.