[00:00:02] Speaker 00: Case number 16-1309NL, Volkswagen Group of America, Inc. [00:00:07] Speaker 00: Petitioner versus National Labor Relations Board. [00:00:09] Speaker 00: Mr. Carter for the petitioner, Mr. Hiller for the respondent, and Mr. Ginsburg for the intervener. [00:01:29] Speaker 04: Thank you very much. [00:01:32] Speaker 04: May it please the court, my name is Arthur Carter. [00:01:34] Speaker 04: I'm here on behalf of Volkswagen, the petitioner in this case. [00:01:39] Speaker 04: I would like to reserve three minutes of my time for rebuttal purposes. [00:01:44] Speaker 04: This case involves a certification test arising out of the NLRB's unprecedented determination [00:01:53] Speaker 04: that maintenance employees from three shops at Volkswagen's Chattanooga, Tennessee facility had a community of interest amongst themselves sufficient to be included in one group for purposes of collective bargaining. [00:02:06] Speaker 04: The board and the regional director and their determinations lumped together the body weld maintenance shop employees, the paint maintenance shop employees, and the assembly maintenance shop employees to construct its own version of a department or shop where one does not exist. [00:02:24] Speaker 04: I'd like to call Your Honor's attention to Joint Appendix 422 because it just graphically indicates physically the situation at the Volkswagen facility. [00:02:37] Speaker 04: You have three separate shops that in effect are three verticals in that operation. [00:02:43] Speaker 03: So is that the part of this that you say is unprecedented? [00:02:47] Speaker 03: Because there's certainly precedent for maintenance employees to be separate bargaining in the unit from production employees. [00:02:55] Speaker 04: Judge Wilkins, that's exactly correct. [00:02:58] Speaker 04: What is unprecedented [00:03:00] Speaker 04: is taking employees from three different maintenance groups or maintenance shops or maintenance departments and combining them in one. [00:03:08] Speaker 04: There's numerous authorities cited in the party's respective briefs that indicate that it's very common for the NLRB to find maintenance units appropriate. [00:03:18] Speaker 04: But the common feature of all of those cases is a centralized maintenance operation in a particular plant under common supervision as opposed to separate maintenance departments. [00:03:29] Speaker 03: I'm sorry, but in the record, doesn't the record support the argument or the inference that the maintenance shops are separate? [00:03:49] Speaker 03: because of really kind of the, I guess the functions that occurs within each of those shops, but not necessarily separate in the sense of like there's some sort of a separate management structure or benefits or the way that they operate, et cetera, right? [00:04:12] Speaker 04: Actually, your honor, what the record shows about the maintenance departments within each of the shops, and there are three shops. [00:04:20] Speaker 04: is that those employees have separate supervision. [00:04:23] Speaker 04: They're separately trained to work in those respective shops. [00:04:26] Speaker 04: They only work on the equipment and technology in those shops. [00:04:30] Speaker 04: They do not interchange between those shops. [00:04:32] Speaker 04: And there's no functional integration between those shops. [00:04:35] Speaker 04: And so what the record shows is effectively three different maintenance departments in the facility rather than one overall maintenance department. [00:04:45] Speaker 03: So if there was just a body well, [00:04:48] Speaker 03: maintenance bargaining unit. [00:04:50] Speaker 03: That would be appropriate. [00:04:51] Speaker 04: Yes, that's correct. [00:04:52] Speaker 04: Your honor, it would be appropriate. [00:04:54] Speaker 04: The problem here is that the board lumped together three different shops and the maintenance employees in those three different shops when they did not have a community of interest, and they're lumping together of the employees in those three different shops with not only arbitrary, but it's not supported by substantial evidence. [00:05:17] Speaker 03: Now the regional director confronted the Bergdorf Goodman case and those arguments and found that notwithstanding that there were the three different shops, there was enough of a community of interest there. [00:05:35] Speaker 03: Well, first off, was there some sort of legal error in that analysis that you want to point us to? [00:05:43] Speaker 04: Yes, your honor. [00:05:45] Speaker 04: This court has said when evaluating community of interest issues, and Blue Man Vegas is a good example, Tito's construction is a good example, Sundor is a good example, that when the board evaluates a community of interest question, [00:06:02] Speaker 04: is to look and consider all the circumstances and apply the factors that are under all those circumstances to the grouping of employees and do a comparison of the employees that are in the petition for a group to see if they have a community of interest. [00:06:18] Speaker 04: The flaw, and what the regional director did here, was essentially she did not compare the maintenance employees with one another. [00:06:28] Speaker 04: Rather, she compared them with the production employees. [00:06:31] Speaker 04: And that's evident from the face of the regional director's decision when she talked about the common supervision lacking because they didn't share supervision with the production employees or the common wages between the maintenance employees because it was different than the production employees. [00:06:51] Speaker 04: But when you net it out, the only thing the regional director came up with is they have a common job title. [00:06:57] Speaker 04: They're called maintenance employees. [00:06:59] Speaker 04: And they have a common function. [00:07:00] Speaker 04: They repair machines. [00:07:01] Speaker 04: But there was no consideration of all the other things that factor into the determination of an appropriate community of interest. [00:07:09] Speaker 03: It seems like you read a different decision than I did, because I thought that the regional director's decision talked about how the maintenance employees, regardless of what shop they were in, they had the same sort of schedule. [00:07:25] Speaker 03: they had the same sort of rules about when they could take vacation or not, training, et cetera. [00:07:40] Speaker 03: So I'm not sure I follow how you're saying that there was kind of like no comparison of the maintenance employees across the shops. [00:07:49] Speaker 04: All right, so you have three shops, and you have separate supervision in each of the shops. [00:07:55] Speaker 04: The schedules in each of the shops vary. [00:07:58] Speaker 04: Two of the shops have the same schedule. [00:08:00] Speaker 04: One of the shops had a different schedule. [00:08:02] Speaker 04: It was not centrally set for it. [00:08:05] Speaker 04: The maintenance employees in each of the shops, as part and parcel of being set separately supervised, had their own PTO, paid time off policies, their own vacation policies. [00:08:15] Speaker 04: And those were not decided on a common or overall basis. [00:08:18] Speaker 04: Those were decided on a shop only basis. [00:08:21] Speaker 04: And as to the [00:08:24] Speaker 04: The question that you've raised about, you know, essentially was this in the decision? [00:08:29] Speaker 04: If you look at the regional director's determination under the heading, application of board law to the facts of this case, [00:08:38] Speaker 04: What the regional director notes is that in concluding that the petition for employees are readily identifiable as a group, I note they share a unique function. [00:08:49] Speaker 04: She then goes on to say, moreover, the petition for employees share a community of interest under the board's traditional criteria, but note what is said and what is not said. [00:08:58] Speaker 05: What page are you on? [00:08:59] Speaker 04: I'm sorry, Your Honor. [00:09:01] Speaker 04: I'm looking at the actual population. [00:09:03] Speaker 05: That's fine. [00:09:04] Speaker 05: That's fine. [00:09:05] Speaker 04: The Joint Appendix, if I can. [00:09:06] Speaker 04: If you'll just bear with me for a moment. [00:09:10] Speaker 03: You have page 19 or page 20 of the Regional Director's decision. [00:09:15] Speaker 03: We have both pages. [00:09:16] Speaker 04: I'm looking at 19 and 20. [00:09:18] Speaker 04: And the RD's decision is also at the, is it better to give you the Joint Appendix reference? [00:09:24] Speaker 04: Sure. [00:09:25] Speaker 04: 622 and 623. [00:09:26] Speaker 04: Thank you, Your Honor. [00:09:27] Speaker 05: Yeah. [00:09:32] Speaker 04: So if I could continue. [00:09:37] Speaker 04: Each of the points made is, while they do work on different machines, once they are assigned to a department, they all share initial hiring criteria. [00:09:47] Speaker 04: That's true, but that was three years before the instant petition. [00:09:52] Speaker 04: But then go on, they say, well, maintenance employees work a different schedule. [00:09:56] Speaker 04: They still provide coverage around the clock. [00:09:58] Speaker 04: All maintenance employees work at a time when production employees are not working. [00:10:02] Speaker 04: But what I'd like you to notice is there's no comparison [00:10:06] Speaker 04: of the maintenance employees shop to shop. [00:10:09] Speaker 04: So using schedule as an example, the schedule is different from shop to shop. [00:10:14] Speaker 04: She knows that there's no interchange of maintenance employees in the three shops, and that's an important factual indicia of community of interest. [00:10:24] Speaker 04: What's more important here is there is no acknowledgement of the very significant evidence of the differences amongst the maintenance employees shop to shop. [00:10:35] Speaker 04: And if I could just summarize a few, and they're essentially uncontroverted, is the physical location of each shop, separate, separated by walls, separate supervision. [00:10:47] Speaker 04: There's no overall maintenance department. [00:10:50] Speaker 04: There's no common supervision. [00:10:53] Speaker 04: Because the technology and the equipment in each shop is different, the requirements to work in each shop is different. [00:11:00] Speaker 04: the protective where empl shops is different. [00:11:05] Speaker 03: But yo and your client has alrea there were a plant wide b employees across all shops [00:11:16] Speaker 04: Your Honor, we would because that would promote industrial stability and is consistent with the prior practice of these parties. [00:11:25] Speaker 04: There was an election in 2014. [00:11:26] Speaker 04: There's an internal policy where the company engages with the union on behalf of all employees. [00:11:34] Speaker 04: And if there was parity of reasoning, if all the things that make it common [00:11:39] Speaker 04: between the separate shops are applicable, then the maintenance employees in each of those shops share all those things in common with the production employees in those shops, and it would therefore follow that an overall production and maintenance unit would be appropriate. [00:11:55] Speaker 04: There is a problem here, though, Your Honor, because the union is unwilling to go to an election in a production and maintenance unit or an overall unit. [00:12:03] Speaker 05: Well, it went to one. [00:12:06] Speaker 05: There was such an election earlier. [00:12:09] Speaker 04: In 2014, there was a stipulated election, Your Honor. [00:12:12] Speaker 04: And the Union was defeated in that election. [00:12:16] Speaker 03: But yes, I'm trying to understand how you believe that the law requires us to determine when there's an appropriate bargaining unit. [00:12:26] Speaker 03: So I think your contention is that if there were a body well unit that was of production and maintenance employees, that would be an appropriate unit. [00:12:42] Speaker 03: Or were you not conceding that? [00:12:46] Speaker 04: No, an argument could be made using body weld as an example. [00:12:52] Speaker 04: That just a maintenance grouping within that unit might be appropriate. [00:12:57] Speaker 04: But a more appropriate unit would be a unit of just the body weld shot. [00:13:02] Speaker 04: because it has all the community of interest factors and features that the board heretofore has said is important in determining whether employees have a community of interest. [00:13:11] Speaker 03: Even though there's no interchange at all between the body weld production employees and the maintenance employee? [00:13:18] Speaker 04: Well, that's a fact. [00:13:19] Speaker 04: And if that's an important consideration, [00:13:23] Speaker 04: then that consideration should follow to the overall point being made here. [00:13:27] Speaker 06: You say if. [00:13:28] Speaker 06: Is it or not an important consideration? [00:13:30] Speaker 04: It's a very important consideration. [00:13:32] Speaker 06: I thought you said if. [00:13:33] Speaker 04: OK. [00:13:33] Speaker 04: No. [00:13:33] Speaker 04: And it's a very important consideration. [00:13:36] Speaker 04: And using that as our point of departure, there is no interchange between body weld and paint and assembly. [00:13:44] Speaker 06: But that happens for your plant-wide unit as well. [00:13:47] Speaker 06: But you said it's fine. [00:13:48] Speaker 04: I'm sorry. [00:13:49] Speaker 06: That happens for your plant, so the plant-wide unit is fine and they don't have the interchange and you have two more units in which there aren't even any maintenance employees at all. [00:13:57] Speaker 06: That was the logistics and quality control. [00:14:00] Speaker 06: So I don't understand how that can be a barrier, those shop lines can be a barrier here to a plant-wide unit, but are not a barrier to the plant-wide unit as long as it's both production and maintenance. [00:14:16] Speaker 04: What we're contending is that [00:14:19] Speaker 04: an overall unit will promote industrial stability and fulfill in an efficient way the requirements of collective bargaining. [00:14:28] Speaker 04: But at this first branch of specialty, distinctive group, yes. [00:14:33] Speaker 04: Community of interest, no. [00:14:35] Speaker 04: No community of interest. [00:14:36] Speaker 04: There's an absence of interchange, absence of integration, absence of common supervision. [00:14:42] Speaker 04: And that's not an appropriate unit. [00:14:45] Speaker 05: Well, you focused on the [00:14:48] Speaker 05: One paragraph of the regional director's decision, but there's another paragraph, a concluding paragraph. [00:14:55] Speaker 05: Doesn't she make a comparison there? [00:14:57] Speaker 04: That goes to the second branch of specialty, whether the excluded employees share an overwhelming community of interest with the included employees. [00:15:08] Speaker 05: Well, she's talking about readily identifiable. [00:15:10] Speaker 05: She says, share a unique function, et cetera. [00:15:14] Speaker 05: share a community of interests under the board's traditional criteria, and then she listens. [00:15:20] Speaker 05: And I agree, she doesn't compare shop one, shop two, to shop three. [00:15:24] Speaker 05: But she says this is true of all of the maintenance employees in these three shops. [00:15:30] Speaker 04: Recognizing that the analytical requirement is to look at the petition for a group of employees. [00:15:38] Speaker 04: Right. [00:15:39] Speaker 04: And that's the comparison that needs to be drawn. [00:15:41] Speaker 04: And analytically, that is a different issue than whether excluded employees should be included in the unit. [00:15:51] Speaker 04: Your honors, I think if there are no further questions, I'll reserve my 30 seconds for rebuttal if I may. [00:15:57] Speaker 04: That will give you some time. [00:15:59] Speaker 05: All right, thank you. [00:16:06] Speaker 05: Council for Respondent. [00:16:16] Speaker 01: Good morning, and may it please the court, Joel Heller for the National Labor Relations Board. [00:16:21] Speaker 01: The board's finding that a unit of maintenance employees at Volkswagen's Chattanooga, Tennessee plant was appropriate involved the application of a standard that this court has upheld to a familiar set of facts. [00:16:32] Speaker 01: Substantial evidence supports the board's finding that the maintenance employees share similar traits and bargaining interests that distinguish them from the excluded production employees. [00:16:41] Speaker 03: Now, what about the fact that there is no interchange among the maintenance employees in the different shops, and it appears that [00:16:50] Speaker 03: when new maintenance employees have been hired in, they've all been kind of promoted up from either production employees or from through this apprenticeship program, but it's not like, you know, there's ever been a maintenance employee from body weld that's gone over the paint or vice versa. [00:17:11] Speaker 01: So I'll address the second part first. [00:17:13] Speaker 01: And that is, so yes, since about 2013 or 2014, all maintenance employees have to go through a three-year apprenticeship program before they are hired as a maintenance employee. [00:17:22] Speaker 01: That's not a requirement of the production employees. [00:17:25] Speaker 01: So they have that initial three-year shared training, shared skills, shared hiring criteria before they go in, regardless of what shop they go to. [00:17:35] Speaker 01: There is no interchange, as was discussed earlier, between the production and maintenance employees. [00:17:40] Speaker 01: And the fact that there's also no interchange between the maintenance, or there's no evidence of interchange between the maintenance employees, well, that was also the case in the Blue Man Vegas case. [00:17:50] Speaker 01: There was no interchange between the various departments that were within a unit that this court found to be appropriate. [00:17:56] Speaker 01: And it's a possibility that maintenance employees can transfer from shop to shop. [00:18:02] Speaker 01: But there's not, I don't believe, evidence that that has occurred. [00:18:05] Speaker 01: The other common factors that unite these maintenance employees and have them a community of interest. [00:18:11] Speaker 01: They have shared, as we talked about, skills and training. [00:18:13] Speaker 01: There's a shared function where they all repair machinery, both on an as-needed basis and scheduled preventive maintenance. [00:18:20] Speaker 01: And those are factors that are pointed out in the board's order on JA-685. [00:18:25] Speaker 01: We were just discussing the regional director's opinion, but there's also the board's order. [00:18:29] Speaker 01: Say, they discuss shared skills, qualifications, training. [00:18:33] Speaker 01: Those are things that are shared within the unit of maintenance employees. [00:18:38] Speaker 01: All maintenance employees also have the same wage structure, and it is significantly higher than that given to the production employees. [00:18:44] Speaker 06: It looks like it was sort of almost locked in at 7 or 7.50. [00:18:49] Speaker 01: It's a seven dollar differential at each step. [00:18:52] Speaker 06: At each step. [00:18:52] Speaker 06: So you've sort of got a locked in wage differential there. [00:18:55] Speaker 01: Yes. [00:18:56] Speaker 01: And including, as the region director pointed out, the highest wage rate for a production employee, which takes seven years to meet, is the same as the starting rate for a maintenance employee. [00:19:09] Speaker 01: Day one, what they receive. [00:19:11] Speaker 06: But you've got a locked in differential there. [00:19:13] Speaker 06: Yes. [00:19:15] Speaker 06: If you have a unit that consists of maintenance employees and the union comes in and negotiates for their wages to be increased, that's an important thing for unions to do. [00:19:27] Speaker 06: We have sort of a tail wagging dog problem here because that's either going to necessarily haul up the weights of production employees if they want to keep that same lockstep differential, which they may want for all kinds of [00:19:40] Speaker 06: employment management or business philosophy reasons. [00:19:43] Speaker 06: And so you're going to have the maintenance employees essentially negotiating the wages of production employees. [00:19:49] Speaker 06: Or you're going to break up that linkage that the employer has put in place. [00:19:55] Speaker 06: and cause problems in that way. [00:19:58] Speaker 06: So when you have sort of same benefits and lockstep wages to really, really important matters for collective bargaining, isn't there a problem with having only half of the story in the bargaining unit? [00:20:12] Speaker 01: Well, so two responses to that. [00:20:13] Speaker 01: One, just as a factual matter, it's [00:20:15] Speaker 01: We don't know whether they would continue to have that $7 differential. [00:20:19] Speaker 01: It's possible that Volkswagen might not care. [00:20:21] Speaker 01: They might negotiate separately with the maintenance unit and come up with some new wage rate that doesn't affect the production in place. [00:20:28] Speaker 06: But secondly... So that would change the way they've organized their wage system thus far. [00:20:33] Speaker 01: But the second point is that the fact that there are some other employees who might be impacted by bargaining between the maintenance unit and Volkswagen follows from the idea that this court has recognized that there is more than one possible appropriate unit within a given workforce, which means that it's possible, as the court discussed in Blue Man Vegas, that there's more than one groupings that might share a community of interest. [00:20:58] Speaker 01: And so bargaining between a smaller group [00:21:02] Speaker 01: might impact the other employees who are not included because they might share a community of interest with the included employees. [00:21:09] Speaker 01: But that doesn't mean that the smaller unit is not appropriate because of that idea that more than one unit can be appropriate. [00:21:18] Speaker 01: So it's possible that production and maintenance employees at the Volkswagen plant, that could be an appropriate unit, but that doesn't mean that the smaller [00:21:25] Speaker 06: I'm asking a different question. [00:21:27] Speaker 06: It's based on employer organization, which the board has recognized as a very important consideration. [00:21:33] Speaker 06: And that is in this scenario, in this situation, where you've got this lockstep system in place. [00:21:41] Speaker 06: And I can imagine all kinds of reasons a business might want that. [00:21:45] Speaker 06: And so the end result of simply organizing [00:21:51] Speaker 06: the smallest portion of that too. [00:21:52] Speaker 06: We've got sort of a very small percent number of maintenance employees versus a large number of production employees and we're going to negotiate their wages and we're going to force the employer to choose between either marching those production employees' wages right up behind them if it wishes to keep that wage organizational system in place or [00:22:13] Speaker 06: abandon that, which is sort of apparently a feature of how they've organized their business. [00:22:19] Speaker 06: And so you've got this small group of maintenance employees, and you're using them to essentially force employment decisions. [00:22:26] Speaker 06: Not that they could have an impact. [00:22:28] Speaker 06: You're going to force an employment decision one way or the other involving production wages. [00:22:33] Speaker 06: They're going to have to make a decision one way or the other. [00:22:36] Speaker 01: But I think that is a minor premise that follows from the major premise, that there could be those two groups, production minutes and minutes only, both could be. [00:22:45] Speaker 01: an appropriate unit, that is, they both could have community of interest. [00:22:48] Speaker 06: Well, it only follows if I agree that the smaller unit is appropriate. [00:22:52] Speaker 06: I'm asking the predicate question of whether, given that type of linkage and given the, as of now, identity and benefits between these two groups, whether recognizing a small group as a unit, knowing that it's going to [00:23:11] Speaker 06: pull everything along with it, pull a very large group along with it, or force the employer to change its entire system. [00:23:19] Speaker 06: Isn't that something that the board should grapple with in deciding whether it's a proper unit? [00:23:25] Speaker 01: There are certainly many factors that the board considers in this unit determination. [00:23:28] Speaker 06: Where did the board grapple with that lockstep, the impact of lockstep wages and identical benefits? [00:23:37] Speaker 01: Again, I think it's the idea that [00:23:41] Speaker 01: It's not fatal to the finding of community of interest within the maintenance-only unit. [00:23:47] Speaker 01: That bargaining between the employer and the maintenance-only unit could or even would have an impact. [00:23:53] Speaker 01: It has to have, right. [00:23:55] Speaker 01: If Volkswagen decides to maintain that. [00:23:58] Speaker 06: It inevitably will have. [00:23:58] Speaker 06: They're going to be forced with either raising production wages to keep their locks up or abandoning their locks up. [00:24:04] Speaker 06: There's no other option. [00:24:05] Speaker 01: OK, then the fact that it would impact those employees who are excluded from the unit is not fatal to the finding that the smaller unit is appropriate. [00:24:13] Speaker 06: Do you have a case where there's been an inevitable impact, a certain impact on other employees? [00:24:19] Speaker 06: Not that there always could be, but that it's in the very design of the workplace and in the design of the business that one has to follow from the other. [00:24:29] Speaker 01: There are many ways in which when we talk about the factor of whether the unit tracks a line that the employer has drawn. [00:24:38] Speaker 01: There are many lines that an employer draws in its workplace. [00:24:41] Speaker 01: It is not limited to operational or administrative lines like a departmental structure. [00:24:46] Speaker 01: It also includes, for example, lines based on job classification. [00:24:49] Speaker 01: Volkswagen decided to classify production and maintenance, or as it also calls them, team members and skilled team members, separately. [00:24:57] Speaker 01: It advertised for them separately. [00:24:59] Speaker 01: It tracks them separately in internal documents. [00:25:02] Speaker 01: And of course, it treats them separately for all the terms and conditions of employment that we've been discussing, like function, skills, wages, aspects of their scheduling with all maintenance employees. [00:25:13] Speaker 06: Sorry, can I just get back to my question? [00:25:14] Speaker 01: Yes. [00:25:14] Speaker 06: Do you have a case where it's been held that it's a proper unit to have a small group of employees when you have these locked-in connections to a larger [00:25:26] Speaker 06: group of employees that will force the employer to have no choice but to make a significant organizational decision with respect to others. [00:25:34] Speaker 01: Well, there are cases in which a set wage differential between two groups has been a factor in supporting the finding of the community of interest. [00:25:45] Speaker 01: The FedEx freight case, there were several of them. [00:25:48] Speaker 01: I believe the one where it is noted was in the Third Circuit version of the FedEx case. [00:25:53] Speaker 01: There was a wage differential between the included and the excluded employees. [00:25:57] Speaker 01: And the board found that, with the court's approval, to be a factor in favor of community of interest. [00:26:03] Speaker 06: And it was a lockstep wage differential or it was just a set? [00:26:06] Speaker 01: I believe it was set. [00:26:07] Speaker 01: I believe it was a set wage differential in that case like we have here. [00:26:11] Speaker 01: It was a smaller one. [00:26:12] Speaker 01: It was a set differential. [00:26:17] Speaker 01: It's also not unprecedented for employees from more than one department to be included within the same unit. [00:26:24] Speaker 01: That was the case in Blue Man Vegas, where they were employees from six different departments who were in the same unit. [00:26:30] Speaker 01: There's also actually a line of cases in which the board has found maintenance-only units to be appropriate. [00:26:36] Speaker 01: from Nestle's, Capri Sun, or Ida, all the times when there is highly skilled, highly compensated maintenance employees who do not interchange with production employees. [00:26:47] Speaker 01: Those units, maintenance only units, were found appropriate, even though in those cases, as here, the maintenance employees were split into groups and were assigned to different parts of the plant that often correlated with different production areas so that they were working on different types of machines. [00:27:02] Speaker 01: And that did not preclude a finding of community of interest. [00:27:06] Speaker 01: I see that my time is up. [00:27:08] Speaker 01: Thank you. [00:27:08] Speaker 05: Council for Intervener. [00:27:23] Speaker 02: May it please the Court, Matt Ginsburg on behalf of the Union Local 42. [00:27:28] Speaker 02: Just to respond to a few of the questions already raised. [00:27:31] Speaker 02: First, Judge Millett, [00:27:33] Speaker 02: I just don't think it's an accurate representation of the record to say that it's a lockstep wage scale. [00:27:38] Speaker 02: There is a scale where there are levels which employees can go from one level to the next based on their terms of service, and certainly it may well be that the union would negotiate to continue that. [00:27:50] Speaker 02: But within that scale, there's wage variation from level to level. [00:27:53] Speaker 02: This is that Joint Appendix 518, which reproduces the wage scale. [00:27:57] Speaker 02: And as the regional director found, it ranges around $7, but it's not $7 precisely. [00:28:02] Speaker 02: And it does fluctuate from wage level to wage level. [00:28:05] Speaker 02: And it could well be that the union and the employer bargain to have it fluctuate slightly differently. [00:28:11] Speaker 02: But there's nothing to say that if it's important to the employer, that that's something they might fight very hard for and bargain. [00:28:17] Speaker 02: So I just don't think it's accurate to state that. [00:28:22] Speaker 02: Further, the employer has never argued before the board or before this court that the wage differential supports its claim that the production and maintenance employee should be put together. [00:28:31] Speaker 02: In fact, they've acknowledged that the wage differential here is so great that it supports the difference. [00:28:37] Speaker 02: And as I understood, [00:28:38] Speaker 02: council to respond to Judge Wilkins' question. [00:28:42] Speaker 02: He actually accepted that there's enough of a differential that a maintenance unit in one of the shops, I believe it was the body weld shop, would be appropriate. [00:28:50] Speaker 02: Again, I would just say the board has a long line of precedent. [00:28:55] Speaker 02: I would say it's almost a categorical rule that when you have maintenance employees in a production facility like this one, who are so much more highly skilled, remember they're referred to as skilled team members by the employer itself. [00:29:07] Speaker 02: and so much more piloted and don't interchange at all with production employees, there's close to a categorical rule that that unit is appropriate. [00:29:15] Speaker 02: The board cited the most recent of those cases, Capri Sun and Uraida, in its decision-denying review here. [00:29:22] Speaker 02: And as we state in our brief at page 20 through 21, the whole line of cases going back to the 1961 case, American cyanamide, [00:29:31] Speaker 02: that those cases support a separate unit here. [00:29:35] Speaker 02: Even though it's smaller than the whole shop, the board has found that there's a strong enough community of interest in these sorts of cases. [00:29:41] Speaker 06: Does the board have to find something that knit these different people from these different shops together somehow? [00:29:47] Speaker 02: So I would say that there is a light burden for the board to find that maintenance employees of this sort, who all share the same job classification and job title, who share the same pay scale as we've already discussed, and who are required to have the same sort of highly technical training, [00:30:05] Speaker 02: to be appropriate within the unit. [00:30:07] Speaker 02: The harder case, I believe, would be if the union was petitioning for just a group of maintenance employees in one plant. [00:30:13] Speaker 02: But here the union is seeking a unit that covers the whole plant and all of the over 100 maintenance employees in the entire plant. [00:30:21] Speaker 02: Moreover, the employer did argue this, obviously, before the regional director, relying very heavily on the Bergdorf Goodman case, and both the regional director and the board made very clear that they, correctly as we believe, that they viewed this case as very different because [00:30:37] Speaker 02: In the Bergdorf Goodman case, which was about selling shoes, which is a great occupation that does not require anywhere near the sort of skill that's required here, there the board said anybody, the shoe sales people were hired off the street with no prior experience necessary, whereas here the employees had to have a very significant, almost a craft level of skill necessary to be hired into these skilled team leader positions. [00:31:02] Speaker 06: And furthermore, the board found... But there's just no movement across these groups. [00:31:06] Speaker 06: I mean, you don't disagree with that. [00:31:07] Speaker 06: There's just no integration at all. [00:31:08] Speaker 02: The record does not reflect any movement, but as we've cited in the brief, the employer's own employee handbook, which they put into the record, states that only skilled team members may bid for other skilled team member positions across the plant. [00:31:22] Speaker 06: So they have a provision to allow that. [00:31:24] Speaker 06: Do you know if production... Okay, I'm sorry. [00:31:25] Speaker 02: It does allow that. [00:31:26] Speaker 06: So do production employees have to go through any kind of [00:31:29] Speaker 06: training program at that college or anything, or did some of them get hired without going through training programs? [00:31:35] Speaker 02: The record reflects, and the regional director found this explicitly, that they're essentially hired off the street and given a very short amount of orientation, some agility training, and then they're put on the job. [00:31:46] Speaker 02: The witnesses here, you had two, if I may, [00:31:49] Speaker 02: The witnesses here who were skilled team members had very long experience. [00:31:55] Speaker 02: One was a journeyman electrician. [00:31:56] Speaker 02: The other was a pipe fitter in a production facility for many years. [00:32:00] Speaker 02: In contrast, the production employees who testified, one had been a customer service agent. [00:32:05] Speaker 02: and sold insurance. [00:32:06] Speaker 02: Again, you know, it's just not even close to a comparable level of skill. [00:32:10] Speaker 02: And again, the board's precedent has been very clear when you have these very large skill differentials in production employees between production and maintenance, the separate maintenance unit is appropriate. [00:32:20] Speaker 06: The union here is a COE, Community Organization Engagement entity? [00:32:29] Speaker 02: Yes, we participate in the engagement program that the company offers. [00:32:33] Speaker 06: And that's on behalf of both production and maintenance? [00:32:37] Speaker 02: Yes, and again, that's by the terms of the company's program itself, which is a voluntary program. [00:32:43] Speaker 06: Do you owe any duties to production, the employees, when you take on this status? [00:32:52] Speaker 02: within the community. [00:32:54] Speaker 06: What kind of duty? [00:32:56] Speaker 02: My view would be we don't have any legal duties through our participation in that process. [00:33:02] Speaker 02: The process is explicitly not a bargaining process and states explicitly that if any group of employees wants to bargain with Volkswagen, they have to go through the NLRB process, which is why the maintenance employees chose to do so here. [00:33:15] Speaker 06: With what authority do you, so you're just like an outside advisory voice? [00:33:19] Speaker 06: Is that the conception? [00:33:21] Speaker 02: Well, no. [00:33:21] Speaker 02: I mean, they have created a voluntary process. [00:33:24] Speaker 02: The terms of that process are in the record. [00:33:27] Speaker 02: That'll permit ongoing conversation, but outside of the confines of the National Labor Relations Act, because as both sides have recognized. [00:33:36] Speaker 06: I get that it's outside of that. [00:33:37] Speaker 06: So then when you speak, are you just speaking for [00:33:40] Speaker 06: your members, or? [00:33:42] Speaker 02: Yes. [00:33:43] Speaker 06: Only for those production or maintenance employees who are already members of the union? [00:33:47] Speaker 02: That's how the process works. [00:33:51] Speaker 02: But again, it's not a bargaining process. [00:33:53] Speaker 02: It's a listing process outside. [00:33:55] Speaker 02: In order to bargain over things like wages or benefits, we have to go through this process, which is why we chose to do so. [00:34:02] Speaker 02: If there are no further questions, the union would ask that the board's order please be enforced. [00:34:07] Speaker 05: Thank you. [00:34:11] Speaker 05: All right, Council for Petitioner. [00:34:16] Speaker 04: Thank you, Your Honors. [00:34:17] Speaker 04: First, what this case boils down to is the NLRB's position that the same job title and the same generic function is strong enough to overcome the employer's specific organizational structure, which translates into significant differences amongst and between the maintenance employees. [00:34:39] Speaker 04: The second point I would make, regarding Judge Mallett's questions, I call it the tail wagging the dog problem. [00:34:47] Speaker 04: We've briefed that thoroughly, and this kind of negotiations and this kind of unit is really inimical to stable collective bargaining. [00:34:54] Speaker 06: So the board said it's lockstep, the union said it's not. [00:34:57] Speaker 04: I'm sorry, Your Honor. [00:34:59] Speaker 06: The board said it's a lockstep pay system, and the union said it's not. [00:35:03] Speaker 06: Which is it? [00:35:04] Speaker 06: Is the pay differential between maintenance and production employees, is it locked in? [00:35:11] Speaker 04: It is. [00:35:12] Speaker 04: The pay differential is different. [00:35:15] Speaker 04: But the steps between it and the percentage differences between each steps are the same. [00:35:20] Speaker 04: I believe there are 11 steps that are equally shared by the production and maintenance employees, with the variable being the dollar difference. [00:35:27] Speaker 04: But the process is the same. [00:35:29] Speaker 03: But there's nothing that says that [00:35:35] Speaker 03: that the salaries or the wages for production employees shall be $7 less at each level from the maintenance. [00:35:49] Speaker 03: In other words, there's nothing written down that sets the wages as a delta from the other, right? [00:35:59] Speaker 04: That is set forth in the team member guidebook. [00:36:01] Speaker 04: In a moment, I can call your attention to that page. [00:36:05] Speaker 04: But that's been established for some time. [00:36:08] Speaker 04: And it's a written set of policies, like all the other benefit policies in the team member guidebook. [00:36:14] Speaker 05: To the extent that Judge Williams just articulated? [00:36:18] Speaker 04: I'm sorry, Your Honor. [00:36:21] Speaker 05: I understand there's this guidebook, but does the guidebook say that there shall always be this $7.50 differential? [00:36:30] Speaker 04: No, it doesn't say always. [00:36:32] Speaker 04: It just sets forth the process. [00:36:33] Speaker 05: All right. [00:36:34] Speaker 05: Thank you. [00:36:35] Speaker 04: And you can see that's grist for the mill of bargaining and creates this whole, I'll call it proxy war, proxy bargaining that could potentially take place. [00:36:43] Speaker 04: But the final point I would make is that the board's reliance here on common. [00:36:50] Speaker 05: Excuse me. [00:36:50] Speaker 05: Could I just interrupt? [00:36:51] Speaker 05: Certainly. [00:36:53] Speaker 05: Following up on a point Judge Millett was making, when you speak of an inappropriate union and labor stability, I tend to think in a different context of strikes [00:37:11] Speaker 05: That type of thing. [00:37:12] Speaker 05: What are you thinking of? [00:37:14] Speaker 05: And I thought that's what Judge Millett's questions were fleshing out for me, that it's this lockstep problem. [00:37:22] Speaker 05: Is that what you're referring to? [00:37:24] Speaker 04: Your Honor, what we were referring to, and it's discussed at length in both our opening and reply brief, [00:37:31] Speaker 04: that the policy of the act is to define collective bargaining units that will promote collective bargaining. [00:37:38] Speaker 05: I understand that. [00:37:39] Speaker 05: All right, and I understand your point about when you're bargaining for the smaller unit, it can affect. [00:37:46] Speaker 05: You're really bargaining for the larger unit. [00:37:49] Speaker 05: And I thought, Judge, well, that's a question, was putting the meat on the bone of that argument. [00:37:57] Speaker 05: Is there anything else you were concerned about? [00:37:59] Speaker 04: Well, the meat on the bone of that argument is that the more strongly the parties insist one way or another on particular changes for things that affect everyone, the greater the likelihood of there being an industrial dispute. [00:38:16] Speaker 05: I understand that as a general point, but you're faced with all the board precedent that says having multiple bargaining units within the same division or department. [00:38:27] Speaker 05: is not a problem from the point of view of the NLRA. [00:38:32] Speaker 04: Well, respectfully, we've argued it is a problem here because part of defining the bargaining unit in the first place requires a consideration of that. [00:38:41] Speaker 04: But what we've done is we've created a department where one does not exist. [00:38:46] Speaker 04: We've lumped together three different groups of employees for bargaining purposes and now placed that group in a position to bargain in ways that can affect 160 people affecting 2,000 people. [00:39:00] Speaker 04: If I might just conclude by saying that in Bergdorf, this case is remarkably similar to Bergdorf. [00:39:11] Speaker 04: In Bergdorf, the board held that the common job title of shoe salesperson and the common function of selling shoes was not sufficient to overcome the employer's departmental and organizational structure. [00:39:25] Speaker 04: And that's what we have here. [00:39:27] Speaker 06: Well, can I back up in that regard? [00:39:28] Speaker 06: And one question, that is, the union says that the company's documents recognize that there could be transfers between shops by maintenance employees. [00:39:41] Speaker 06: Do you agree that that's, whether it's happened or not, that that's something that's permissible? [00:39:45] Speaker 04: That's page 97 of the Team Member Guidebook. [00:39:50] Speaker 04: Is that in the JA? [00:39:51] Speaker 04: In the JA. [00:39:59] Speaker 04: sorry it's j five three nine and there are a couple of things to note your honor i'll wait for you to get to that page first is it's a request it's not a right second there is no evidence whatsoever in this case that this in fact has occurred [00:40:26] Speaker 04: Third, what the evidence has indicated very strongly, because of the different equipment and technology in each plant, the ability to freely move from one shop to another is very limited. [00:40:40] Speaker 04: It would require considerable training for someone to move from one plant to the next. [00:40:48] Speaker 05: Thank you. [00:40:48] Speaker 05: We'll take the case under advisement. [00:40:51] Speaker 04: Thank you.