[00:00:00] Speaker 00:
Case number 15-1231 et al, CC1 limited partnership, DBA Coca-Cola Puerto Rico bottlers petitioner versus National Labor Relations Board.

[00:00:12] Speaker 00:
Mr. Mendez-Gomez for the petitioner, Mr. Berg for the respondent.

[00:00:16] Speaker 01:
Ah, Council, could I just, Council, in the first case, sorry, I want to express the Court's appreciation for your assistance in handling this matter.

[00:00:28] Speaker 01:
Thank you.

[00:00:57] Speaker 05:
Good morning.

[00:00:59] Speaker 05:
My name is, may it please the court, my name is Nestor Mendez-Gomez, and I represent the petitioner and cross-respondent in this case, CC1 Limited Partnership.

[00:01:10] Speaker 05:
Your Honor, this case, in essence, involves a wildcat strike.

[00:01:16] Speaker 05:
All three board members that rule on the case, the two majority members and the dissenting member, agreed on that point.

[00:01:26] Speaker 05:
The disagreement was whether it was a protected conduct under Section 7 of the National Labor Relations Act or whether instead it constituted a lawful basis for termination under Section 8.

[00:01:41] Speaker 05:
The two board members that justify the undisputedly unauthorized strike in essence argued that because the exclusive representative, the Teamsters Union in that case,

[00:01:55] Speaker 05:
had authorized a strike more than a month before, a dissident faction of the union could, for all intents and purposes, decide when and where to exercise that strike vote.

[00:02:13] Speaker 01:
Well, is the word dissident yours or the board's?

[00:02:16] Speaker 05:
Excuse me?

[00:02:17] Speaker 01:
Is the word dissident yours or the board majority?

[00:02:23] Speaker 05:
There was a dissident faction.

[00:02:25] Speaker 01:
Well, I don't think that's the way they looked at it.

[00:02:28] Speaker 05:
I think the bottom line was that the Union, the exclusive representatives, was following a different strategy than a group.

[00:02:39] Speaker 01:
Actually, though, in our standard of review here,

[00:02:44] Speaker 01:
Given our standard of review, the majority found that the Union had three goals, and those were the same that this group that you're referring to had.

[00:03:00] Speaker 05:
The evidence really showed that the original three goals that the Union had

[00:03:10] Speaker 05:
and on which the strike vote was voted on on September 15 were, number one, to continue to bargain the collective bargaining agreement.

[00:03:19] Speaker 05:
Number two, to reinstate the shop stores that had been

[00:03:25] Speaker 05:
suspended at that point in time.

[00:03:28] Speaker 05:
And three, to prevent any charges against the union.

[00:03:32] Speaker 05:
Those were the three initial goals.

[00:03:34] Speaker 05:
What happened was that after the October 3rd election that the union held, the group of the stewards and the union split their intents and purposes.

[00:03:51] Speaker 05:
although some of the boards of the board found that that they had the same goals that's a that's a finding and the standard review uh... by which we examine that is whether there's substantial evidence and that doesn't take a whole lot the congruence on the general goal for example of continued to negotiate does not trump the unions right to decide when to strike and indeed what the

[00:04:20] Speaker 05:
dissident group did was when they held a competing assembly with the union's October 12 assembly, which was, by the way,

[00:04:34] Speaker 04:
to elect a new bargaining committee that would substitute... Maybe you answered Judge Rogers' question on this and I didn't hear it, but you keep calling them a dissident group.

[00:04:45] Speaker 04:
Did the board majority ever refer to them in those terms as a dissident group?

[00:04:51] Speaker 04:
The dissident member did.

[00:04:53] Speaker 04:
They used the word dissident group.

[00:04:55] Speaker 04:
Yeah.

[00:04:55] Speaker 04:
The board majority.

[00:04:56] Speaker 05:
Yeah.

[00:04:57] Speaker 05:
It specifically said that it was a dissident group.

[00:05:01] Speaker 05:
In that October 12 meeting, that competing meeting that they held in spite of the fact that the new business representative told them do not divide the membership and do not take a strike vote, they warned them that

[00:05:15] Speaker 05:
On October 9th, the business representative told the competing group, which had announced that they would hold an election the same day that the union had announced that they were going to hold an assembly.

[00:05:32] Speaker 05:
After they were warned of that, they went ahead, held a meeting, and took a strike vote that, and this is where I disagree that the goals were the same,

[00:05:43] Speaker 05:
put first and foremost, subject to a strike, the immediate reinstatement of the stewards.

[00:05:53] Speaker 05:
As a second goal, and this is in the dissident opinion and it's in the appendix, I think, 248, the second goal was

[00:06:02] Speaker 05:
to have the shop stewards, which were the original bargaining committee, be in charge of the negotiations.

[00:06:10] Speaker 05:
Those were the two goals that were voted on on October 12, which were

[00:06:16] Speaker 05:
different from the original September 15 vote.

[00:06:20] Speaker 05:
Indeed, that same day, the union in their own assembly did not hold a strike vote, did not decide that they should go ahead with the September 15 vote.

[00:06:32] Speaker 05:
So you have the union the same day,

[00:06:34] Speaker 05:
proceeding with their assembly, not holding a strike vote, and you have the dissident group deciding we're going to go to strike unless you immediately reinstate the shop stewards, unless you put the shop stewards in charge of the negotiation.

[00:06:50] Speaker 01:
Well, I thought the response, though, or the evidence, was that those were the members of the negotiating committee at that time.

[00:07:01] Speaker 05:
No, well, not correct.

[00:07:04] Speaker 05:
The original committee, including Mr. Lopez, who was involved in the work stoppage, he was terminated on October 6 by the union and substituted for Mr. Vazquez.

[00:07:17] Speaker 05:
So at least one of the members of the bargaining committee, indeed the lead member, the business representative, had been substituted by October 12.

[00:07:27] Speaker 05:
The union had called the October 12 meeting precisely to elect new bargaining members to substitute the rest of the members, which were the stewards.

[00:07:39] Speaker 01:
So clearly... But they hadn't.

[00:07:41] Speaker 01:
The new committee had yet to be... I agree with that.

[00:07:46] Speaker 05:
Yet the union went ahead when on October 13 the company told the membership directly, we're going to negotiate.

[00:07:58] Speaker 05:
the union and the company exchanged letters, October 15 and 16, that were posted on the bulletin board that they were going to go ahead and negotiate.

[00:08:08] Speaker 05:
So at that point in time, it was the union through the officers of the union.

[00:08:14] Speaker 05:
In fact, the letters were signed by the new business representative and the attorney of the company that they were going to go ahead and negotiate, October 15 and 16.

[00:08:26] Speaker 05:
In the meantime, the dissident group is saying no, no, no, don't go ahead and negotiate unless you immediately reinstate the shop steward.

[00:08:35] Speaker 05:
That was their number one goal.

[00:08:37] Speaker 05:
So what really happened here is that the

[00:08:41] Speaker 05:
group of the stores decided to derail, I would say, almost boycott the agreement that had been made between the company and the union.

[00:08:54] Speaker 05:
Could I ask you this question?

[00:08:55] Speaker 02:
Yes, excuse me.

[00:08:56] Speaker 02:
So let's suppose that I think, and you might disagree with this, but just indulge my assumption.

[00:09:01] Speaker 02:
Let's just suppose that what has to happen is the employees have to know

[00:09:07] Speaker 02:
that what they're doing is in conflict with what the union wants to have done.

[00:09:11] Speaker 02:
Let's just assume that.

[00:09:13] Speaker 02:
Then the first evidence that I see in the record that employees might have become aware that what they're doing by striking is in conflict with the union's wishes is during the strike.

[00:09:25] Speaker 02:
And on the first day of the strike, the employer, your client reaches out to the union and says, what's going on?

[00:09:30] Speaker 02:
There's a strike.

[00:09:32] Speaker 02:
And then the union responds and says, I don't know, this isn't something that we authorized.

[00:09:36] Speaker 02:
And it uses some language in the letter that makes clear that the union didn't support the strike.

[00:09:42] Speaker 02:
And then the employer, your clients, the security guards apparently distributed that letter to the striking employees.

[00:09:49] Speaker 02:
So at that point, there's an argument that the employees were aware that what they were doing was in conflict with the union's desires.

[00:09:58] Speaker 02:
And my question is this.

[00:10:00] Speaker 02:
As I understand it, some of the employees, after they received the letter, stopped striking and went back to work.

[00:10:07] Speaker 02:
Correct.

[00:10:09] Speaker 02:
Are any of the employees that are still an issue in this case, those employees?

[00:10:13] Speaker 05:
No.

[00:10:13] Speaker 05:
The ones that issue, precisely, were the ones that continued to strike for two more days after that formal, specific, clear notice that you just described.

[00:10:26] Speaker 05:
But I would add that not only did

[00:10:29] Speaker 05:
The four employees I issue here that were terminated for continuing for those two days, not only did they get that notice, those four employees also knew before that time, at least by October 13, that what the company wanted to do was negotiate.

[00:10:50] Speaker 05:
During a meeting held on October 13, where all of the members were told by the company, by Mr. Trigueros, we want to negotiate, they responded, oh, but we want you to negotiate directly with the shop stewards.

[00:11:03] Speaker 05:
OK.

[00:11:04] Speaker 05:
So there, they knew that there was at least a conflict

[00:11:10] Speaker 05:
or an initial conflict and a proposal for direct negotiation, which is against Section 9.

[00:11:16] Speaker 05:
But then subsequently, on October 14 and 15, the letters between the company and the union are exchanged and posted on the bulletin boards.

[00:11:26] Speaker 05:
That's noticed to all of the members that they were going to start the negotiations.

[00:11:32] Speaker 05:
For the bargaining committee, in those letters, there was no mention of the reinstatement of the stewards.

[00:11:39] Speaker 05:
So you have the union, the exclusive representative, we're gonna go ahead with the negotiations, we're not gonna strike, we're not gonna condition the reinstatement of the stewards to the negotiation, we're not gonna stop the negotiations because of it, nor are we gonna strike because of this.

[00:11:57] Speaker 02:
Where are you getting the we're not gonna strike part?

[00:12:00] Speaker 02:
Excuse me?

[00:12:01] Speaker 02:
You added in we're not gonna strike, and where's that coming from?

[00:12:05] Speaker 05:
Well, that's coming from the October 15 and 16 letters that not mention any condition on the negotiations, okay?

[00:12:17] Speaker 02:
On the October... But there's no guarantee that there's not going to be a strike either.

[00:12:24] Speaker 02:
Oh, no.

[00:12:24] Speaker 05:
I agree.

[00:12:25] Speaker 05:
I agree.

[00:12:26] Speaker 05:
But I think the confirmation of what happened here is that once those letters are out, once the

[00:12:33] Speaker 05:
there's negotiation that starts or at least there's an agreement to start on October 16, you have the dissident group meet at the house of one of the shop stores and plan to strike the next day with the group of the 50 that signed that requirement that we're going to strike unless you reinstate number one and unless you name us the shop stores to negotiate.

[00:13:01] Speaker 05:
That happened October 19.

[00:13:03] Speaker 05:
Okay?

[00:13:04] Speaker 05:
At that time, everyone in that meeting that then subsequently went to the strike the next day, the ones that approved the strike, the ones that planned the strike, the ones that signed that agreement, knew that the union and the company were already agreeing to negotiate without conditioning that or without imposing a strike.

[00:13:28] Speaker 05:
But regardless,

[00:13:30] Speaker 05:
On the morning of the first day, there was a clear cut letter from my client to the union saying, Hey, you agreed not to strike.

[00:13:43] Speaker 05:
Okay.

[00:13:44] Speaker 05:
And two.

[00:13:46] Speaker 05:
You agree to negotiate.

[00:13:48] Speaker 05:
And then there's the response that was distributed to everyone from the union.

[00:13:52] Speaker 05:
We agreed to negotiate.

[00:13:55] Speaker 05:
And then in the last paragraph of that letter, which if anyone had any doubt,

[00:14:01] Speaker 05:
is where they then very forcefully say that there is a subgroup that are false leaders and that are basically calling this strike because of their own ignoble interests, which

[00:14:17] Speaker 05:
is the translation for the Shelf Steward's dissident group that wanted their immediate rain statement and had forced a strike as opposed to the continuum of negotiation without a strike, or at least without a strike that day.

[00:14:34] Speaker 01:
All right, shall we hear from the board?

[00:14:37] Speaker 01:
Let us hear from the board, and we will give you some time on rebuttal.

[00:14:41] Speaker 05:
Sure.

[00:14:41] Speaker 05:
Thank you.

[00:14:49] Speaker 03:
May I please the court?

[00:14:50] Speaker 03:
Good morning.

[00:14:51] Speaker 03:
My name is Jeff Bird.

[00:14:51] Speaker 03:
I'm here on behalf of the National Labor Relations Board.

[00:14:54] Speaker 03:
Your Honors, when Miguel Colon participated in the September 9 work stoppage and when the employees the following month engaged in a strike, they were engaged in activity designed to take mutual, to engage in mutual aid and protection for one another's benefit and therefore was protected by Section 7 of the Act.

[00:15:12] Speaker 03:
Now, the board, as it's charged with, also balanced the employees' Section 7 rights against the principle of majority rule set forth in Section 9A of the Act in determining whether the strikers

[00:15:26] Speaker 03:
because they had engaged in October in this unauthorized, this action was unauthorized by the union, balanced within the sphere of its expertise those rights and have a long established test for doing so, applied that test, and based on substantial evidence found that while this action was unauthorized,

[00:15:46] Speaker 03:
In fact, it was neither inconsistent with the union's position.

[00:15:51] Speaker 04:
How could you say it was inconsistent with the union's position when the union had decided, at least at that point in time, not yet to strike, and the Wildcatters went ahead and struck?

[00:16:01] Speaker 04:
Isn't that a fundamental inconsistency there?

[00:16:03] Speaker 03:
Well, I don't know that I would characterize it as a fundamental inconsistency.

[00:16:07] Speaker 04:
Inconsistency that that shows the decide whether to strike to decide whether to strike or not That's the biggest weapon you've got right and the Union for whatever reason had decided at that point in time not to strike the wildcatters went ahead and struck

[00:16:23] Speaker 04:
That, why isn't that fundamentally inconsistent?

[00:16:25] Speaker 03:
Because what the board looks to in determining whether there's an inconsistency is what are the union's established objectives?

[00:16:30] Speaker 03:
This is the language that the board has used.

[00:16:32] Speaker 03:
It's the language that the... Well, it's not merely outcomes.

[00:16:35] Speaker 03:
It's also process.

[00:16:36] Speaker 04:
It's also strategy to reach those outcomes.

[00:16:39] Speaker 04:
Right, and... And the argument is that the union had decided, at least at that point in time, that a strike was not the best way to reach those outcomes.

[00:16:48] Speaker 04:
The wildcatters

[00:16:50] Speaker 04:
decided to maybe reach those outcomes, but decided in a fundamentally different way.

[00:16:54] Speaker 04:
Why isn't that so inconsistent that it's irrational to say that... I apologize.

[00:17:02] Speaker 03:
Your Honor, I believe that the term inconsistency is used here.

[00:17:04] Speaker 03:
It's akin to a term of art as the boards developed it in looking at

[00:17:09] Speaker 03:
Again, the balancing of the employees' rights.

[00:17:11] Speaker 03:
And the employees, by electing an exclusive bargaining representative, as they had done here, do not forfeit all rights to engage in Section 7 activity.

[00:17:21] Speaker 03:
And so the question is whether they did so in such a manner that it undermines the union's right.

[00:17:25] Speaker 02:
So following up on Judge Griffith's question, so suppose you have a situation in which the goals are the same.

[00:17:32] Speaker 02:
Let's call them just employees.

[00:17:35] Speaker 02:
I would not agree with that.

[00:17:37] Speaker 02:
Sure.

[00:17:38] Speaker 02:
I don't know how else to describe them, the wildcat striking employees, the wildcatters.

[00:17:43] Speaker 02:
Let's just suppose that the union actually gives them a correspondence ahead of time that says,

[00:17:52] Speaker 02:
We don't think a strike is a good idea.

[00:17:54] Speaker 02:
We don't condone a strike.

[00:17:56] Speaker 02:
In fact, we prohibit a strike from our employees.

[00:17:59] Speaker 02:
And then the employees say, okay, you don't want us to strike, but you know we have the same goal in mind.

[00:18:05] Speaker 02:
We want to get higher wages.

[00:18:06] Speaker 02:
We're going to go on strike.

[00:18:08] Speaker 02:
We think a strike's a good idea.

[00:18:09] Speaker 02:
I don't think that you would take the position that that's still okay because the goals are the same.

[00:18:14] Speaker 03:
Your honor, I will first say, if you'll allow me, that this is of course the hypothetical situation the board would have to address in the first instance.

[00:18:22] Speaker 03:
This is, that would be a significant fact for the board to add into the mix because it is a fact that is completely absent here.

[00:18:30] Speaker 02:
But is there any doubt?

[00:18:31] Speaker 02:
I guess it sounds to me like you're saying that that's a situation in which the board might actually conclude that because the goals are consistent, it's totally fine that the union says don't strike and the employees strike anyway.

[00:18:41] Speaker 03:
No, I think that the case law shows that a fact like that would make it would be difficult, although I'm just saying this for my client.

[00:18:48] Speaker 02:
What's the difficulty?

[00:18:49] Speaker 02:
I don't understand why you're even carving out difficulty.

[00:18:52] Speaker 02:
It's the argument that it's okay for unions

[00:18:56] Speaker 02:
If the exclusive bargaining, it's a balance between Section 7 and Section 9.

[00:19:01] Speaker 02:
If Section 9 means anything, it seems like it would have to mean that if the exclusive bargaining rep says, don't strike, and the employee says, I'm striking, and by the way, I have a Section 7 right to do it, the employer seems like they could act on the assumption that the exclusive bargaining representative

[00:19:17] Speaker 02:
The Section 9 representative is saying don't strike.

[00:19:19] Speaker 03:
Yes, Your Honor.

[00:19:21] Speaker 03:
All I can say is that I agree with you.

[00:19:23] Speaker 03:
It's very difficult to see how there is anything but a square inconsistency there, but I cannot bind my client to an outcome in a future case that's not presented here.

[00:19:33] Speaker 02:
Yeah, I appreciate that.

[00:19:34] Speaker 03:
But I understand that had that notice been given from the union to the members that the union has a duty to fairly represent, the case would be different.

[00:19:41] Speaker 02:
So then if that's true, as Judge Griffith raised the possibility that there's an inconsistency between the union and the employees, in this case it seems like

[00:19:54] Speaker 02:
That kind of notice was received by some of the employees on the first day of the strike because they got the letter from the union to the employer that says, we don't condone the strike.

[00:20:05] Speaker 02:
And at that point, what's the argument that it's not exactly the hypothetical that I laid out?

[00:20:10] Speaker 02:
The only distinction I can see is that as a matter of historical fact, the person who gave the employees the letter was a security guard employed by the employer as opposed to a union rep.

[00:20:22] Speaker 02:
Yes, and that's the only and that's in a footnote in the board's opinion.

[00:20:25] Speaker 03:
Well, it is also the fact, of course, that this is a communication and during ongoing bargaining, because even though the actual bargaining at the negotiating table had stalled, the relationship between the company and the union is one of bargaining.

[00:20:37] Speaker 03:
During the course of that bargaining, the company on October 20th,

[00:20:41] Speaker 03:
stated that what's going on here and the union responded directly to the company.

[00:20:46] Speaker 03:
Now the union had never provided that to its own members despite having had notice for nearly a week at that point that the union or that the employees had held another meeting and created a petition to strike, had furnished that to the union.

[00:21:00] Speaker 03:
The union did not respond to the employees to tell them as we discussed earlier that type of fact that

[00:21:06] Speaker 03:
do not do this, this is not the way we would like to proceed.

[00:21:10] Speaker 02:
It sounds like the distinction that you're making is the one that was suggested, which is that the correspondence didn't go directly to the employees from the union.

[00:21:18] Speaker 02:
It went so curiously to the employees because it first went to the employer and the employer gave it to the employees.

[00:21:23] Speaker 03:
That is true.

[00:21:25] Speaker 03:
It's not simply the mere fact of the route it traveled, however.

[00:21:28] Speaker 03:
It was that it was directed to the company in the discussions of whether they would resume negotiations.

[00:21:33] Speaker 02:
What if the union had taken the letter that it wrote to the employer and had given it to all the employees and had said,

[00:21:40] Speaker 02:
Hey, we just gave this to the we just gave this to the company.

[00:21:44] Speaker 02:
We're not behind the strike.

[00:21:46] Speaker 03:
I mean, that would be that would also be a different scenario than we have here because that's the union standing behind its words as a message as a message to the members that it has a duty to represent.

[00:21:55] Speaker 03:
And so therefore, they're sanctioning it in a way

[00:21:56] Speaker 03:
that is not sanctioned when they tell this to the company in the back and forth over discussions of resuming bargaining, reinstating the stewards, and meeting the demands that the union has put forth.

[00:22:06] Speaker 03:
The union had every opportunity at multiple stages to disavow its established rights.

[00:22:13] Speaker 03:
And never ask them to stop.

[00:22:14] Speaker 03:
Now this is what sets this case apart from some of the others that we've bantied about in our briefs, and that is that this isn't a situation where there's a question of the Union's objectives.

[00:22:23] Speaker 03:
The Union and the Union's leadership established these objectives and never took a step back from them.

[00:22:29] Speaker 03:
Now arguably the point at which they may have came closest to doing so was this October 20 letter at the beginning of the strike, but as we've already discussed it wasn't communicated.

[00:22:37] Speaker 03:
directly.

[00:22:38] Speaker 02:
Now there were intervening events as the company... Some employees obviously assumed that the letter

[00:22:44] Speaker 02:
reflected the union's wishes because they stopped striking, right?

[00:22:48] Speaker 03:
Right, they absolutely may have.

[00:22:49] Speaker 03:
That might have been their interpretation, certainly.

[00:22:51] Speaker 03:
There's not direct evidence on exactly who or why they did return, but there seems to be an inference, as the board set it out, although I don't believe they termed it an inference, that it was the letter.

[00:23:01] Speaker 01:
So on this point, I understand what the board's position is here, that the union writes the employer a letter saying, we're not authorizing the strike.

[00:23:16] Speaker 01:
And the employer makes that available to the employees.

[00:23:21] Speaker 01:
And there's no question the letter is a fake.

[00:23:24] Speaker 03:
Oh, no, no, no.

[00:23:24] Speaker 03:
No, you're not.

[00:23:25] Speaker 01:
Anything like that.

[00:23:26] Speaker 01:
No.

[00:23:27] Speaker 01:
So at that point, just so I'm clear here, why isn't the employer properly in the position of taking the position that the employees who continue to strike after they have seen this letter

[00:23:46] Speaker 01:
are not protected.

[00:23:48] Speaker 01:
I mean, what's the board's theory here?

[00:23:55] Speaker 01:
The board says, well, you know, the union didn't do anything to tell the employees directly or that it had changed its position regarding a strike, yet it had told the employer that this was not an authorized strike.

[00:24:15] Speaker 03:
Well, I mean, it's not for the company to... The company didn't hear directly from the employees.

[00:24:22] Speaker 03:
The company heard the union's position and simply, summarily fired the employees to fight.

[00:24:26] Speaker 01:
So, I guess what I'm trying... I have a company.

[00:24:30] Speaker 01:
The employees are unionized.

[00:24:31] Speaker 01:
I'm trying to figure out what's going on here.

[00:24:34] Speaker 01:
So I get a communication from the union that says, we have not authorized this strike.

[00:24:40] Speaker 01:
All right?

[00:24:41] Speaker 01:
I share that with the employees so they know

[00:24:45] Speaker 01:
that this is not an authorized strike.

[00:24:50] Speaker 01:
And yet some employees continue to strike.

[00:24:56] Speaker 03:
the board has carved out a situation in which, or carved out room for unauthorized activity to remain protected by section seven.

[00:25:03] Speaker 02:
And so the mere fact that the company had learned that this was not unauthorized does not conclusively establish that there is the type of inconsistency that has- No, but we already went through that because I think as long as the communication would have gone from the union to the employees directly, then it becomes very difficult to say that the employees could continue striking, right?

[00:25:26] Speaker 02:
The distinction is, as far as I can tell, and this is what Judge Rogers is saying, the only distinction that the board makes without analyzing the legal significance of it is in footnote six of the board's opinion, where it makes the factual assertion that the communication went from the employer rather than from the union.

[00:25:40] Speaker 02:
But there's no assessment of the legal consequences of that.

[00:25:43] Speaker 02:
It's just a factual assertion.

[00:25:44] Speaker 02:
So presumably the entire rationale rests on that footnote.

[00:25:51] Speaker 03:
Yes, I mean that that is what the board has given us and his analysis of why that letter didn't serve the purpose that the company or that doesn't bear the weight of the company.

[00:25:59] Speaker 02:
And I don't think that the board's brief mentioned that letter as far as I could tell.

[00:26:04] Speaker 02:
And it seems like that's a pretty significant fact because at that, suppose the employer had given the letter to all the employees and had said to carry forward Judge Rogers hypotheticals, suppose the employer had said,

[00:26:17] Speaker 02:
I thought it was an authorized strike.

[00:26:19] Speaker 02:
I'm now told by the unions that it's not an authorized strike, then the union is not behind this at all, and in fact, which is contrary to you about striking.

[00:26:30] Speaker 02:
So what I'm going to do is this.

[00:26:32] Speaker 02:
I'm going to give all you guys this letter, and the ones of you who see the letter and go back to work, hands off.

[00:26:39] Speaker 02:
You're good.

[00:26:40] Speaker 02:
The ones of you who keep striking, I'm going to discharge you because the strike is not authorized.

[00:26:45] Speaker 02:
well it's but again it's I mean the fact that maybe I'm splitting hairs here but the fact that it's unauthorized is conceded so and sure okay then but there but you have to see a distinction between not authorized and opposed yes the union opposes the strike and that it's hard to you don't take the position to the letter

[00:27:02] Speaker 02:
doesn't reflect union opposition to the strike.

[00:27:05] Speaker 02:
You acknowledge that the letter says the union opposes the strike?

[00:27:08] Speaker 03:
Yes, the letter to the company, yes.

[00:27:09] Speaker 04:
Is that right?

[00:27:11] Speaker 04:
I didn't understand that because I thought part of your argument later was that the union did not, in fact, oppose the strike.

[00:27:20] Speaker 03:
Well, I can't say I remember exactly how we characterized it in our brief or what we stated in our brief, but it is evident that the letter that the... But the board's analysis.

[00:27:29] Speaker 01:
I mean, the board's analysis is that the union never did anything to tell the employees to stop.

[00:27:36] Speaker 03:
And that's correct.

[00:27:37] Speaker 02:
But that's only because the union didn't directly say it.

[00:27:40] Speaker 02:
That's right.

[00:27:41] Speaker 02:
I don't even think the board disputes that the letter from the union is in opposition to the strike.

[00:27:46] Speaker 03:
And that is what I was conceding, Your Honor.

[00:27:49] Speaker 03:
It is true that the letter that was communicated to the company states that.

[00:27:52] Speaker 03:
There was no communication to the employees to inform them that their position was inconsistent with that of the union.

[00:27:58] Speaker 01:
No direct communication.

[00:28:01] Speaker 03:
There was no direct communication.

[00:28:02] Speaker 03:
That's right.

[00:28:02] Speaker 03:
Now in what there was.

[00:28:03] Speaker 01:
So the board has taken the position that when you elect a representative, you still retain some section seven rights.

[00:28:13] Speaker 01:
And until that representative tells you directly something, you retain those rights.

[00:28:23] Speaker 01:
And then the employer is left with a meaningless letter.

[00:28:28] Speaker 01:
in terms of its potential Section 8 liability.

[00:28:34] Speaker 03:
Well, I don't know that the board has made such a broad statement here because it didn't need to.

[00:28:38] Speaker 01:
I understand, but I'm just trying to understand the board's rationale here, what's going on.

[00:28:44] Speaker 01:
I mean, the union can talk out of both sides of its mouth.

[00:28:48] Speaker 03:
Well, I mean, the question is whether the employees have the protection.

[00:28:52] Speaker 03:
And what the employees knew is that the union had established demands, and the employees stood by those demands.

[00:29:00] Speaker 01:
So the only thing the employer can do is say, I have this letter, and now, union, you must tell your employees that you do not support this strike.

[00:29:14] Speaker 03:
Well, I mean, I hesitate to say that that's the only course they could take.

[00:29:17] Speaker 03:
But that is certainly a course that would address what we discussed earlier about having that direct communication where the union finally disavows after six weeks of standing by these demands, disavows those demands, and makes it evident to the employees.

[00:29:32] Speaker 01:
So the next case would be where the employer says, fine, tell your members to stop striking.

[00:29:39] Speaker 01:
And the union refuses to do that.

[00:29:42] Speaker 01:
That's this hypothetical situation.

[00:29:44] Speaker 01:
Then the board might resolve the section eight liability differently.

[00:29:49] Speaker 03:
They might.

[00:29:51] Speaker 03:
But it also may indicate, hypothetically, of course, that that establishes that the union is not, in fact, taking a position that's inconsistent with the employees.

[00:30:00] Speaker 03:
It could be akin to posturing and bargaining that it's taking with a company when, in fact, they do support the efforts of their employees to move along bargaining and to bring about the reinstatement of the discharge stewards.

[00:30:12] Speaker 02:
Seems like a whole lot turns on what's in footnote six, what's in two sentences.

[00:30:17] Speaker 02:
Actually, it's one sentence.

[00:30:19] Speaker 02:
with a few commas in it, a one sentence is a one sentence footnote.

[00:30:23] Speaker 02:
And a whole lot turns on that.

[00:30:25] Speaker 02:
And all we have is that factual assertion without any explanation of why that's legally consequential.

[00:30:31] Speaker 02:
It's rather under theorized because one's left with the impression that everything turns on the fact that the employer was the one, the employer security guards were the ones who gave the letter.

[00:30:44] Speaker 02:
And we just don't know from the board's decision

[00:30:47] Speaker 02:
Why that matters a lot?

[00:30:49] Speaker 02:
What's the legal framework within which that matters?

[00:30:52] Speaker 03:
Well, it is true that much has to be read into that, but I believe that in the context of the discussion, it's a determination of whether there was an inconsistency, and the board found that that fact did not, I mean by implication, that that fact did not establish that there was the type of inconsistency that should strip the employees of their Section 7 rights in favor of the majority principle of 9A.

[00:31:15] Speaker 03:
If I could just make a few last-minute points.

[00:31:20] Speaker 03:
This is not a case about one right trumping another as the company set forth in its reply brief, of course.

[00:31:25] Speaker 03:
It's about reconciling two competing statutes and giving full effect to both when possible.

[00:31:32] Speaker 03:
We haven't gotten to the discussion of Miguel Colon or the other arguments that were raised.

[00:31:37] Speaker 03:
I'm happy to answer questions.

[00:31:38] Speaker 03:
The only thing I'd like to say about Mr. Colon was that we obviously have a slight difference about what the framing of the issue is.

[00:31:44] Speaker 03:
This is a strict, substantial evidence matter about what activity he engaged in on September 9.

[00:31:49] Speaker 03:
It's not about expiration of a collective bargaining agreement.

[00:31:52] Speaker 03:
I think there might have been a misreading of the board's decision on that point.

[00:31:55] Speaker 03:
As far as the remedy argument that was waived about whether there should be adverse tax consequences included,

[00:32:01] Speaker 03:
And the final issue is the last chance agreements that the board seeks some reinforcement of.

[00:32:05] Speaker 03:
The board clearly set that forth in its order that these last chance agreements be expunged from the records and that the company cease and desist from encouraging its employees or coercing its employees to do this in the future.

[00:32:17] Speaker 03:
And so if the company did not realize that that was before this court, I think it is plain from the board's order.

[00:32:23] Speaker 03:
So we would seek some reinforcement of that finding as well.

[00:32:25] Speaker 01:
And so what's your response to the extraordinary circumstances argument?

[00:32:30] Speaker 01:
as to the tax consequences.

[00:32:33] Speaker 01:
It's in the library.

[00:32:34] Speaker 03:
Well, I mean, they say extraordinary circumstances because this case did arise through the posture that, unfortunately, some of our cases have in recent years because of the null canning decision of the Supreme Court.

[00:32:45] Speaker 03:
When it went back, at the time the board issued its decision in order in 2012, the general counsel had not requested and the board had not imposed this adverse tax consequence remedy.

[00:32:56] Speaker 01:
So, in other words,

[00:32:58] Speaker 01:
The effect would be that if you have a Noel Canning situation, when the board says we're starting over, then what happened before has to be ignored.

[00:33:13] Speaker 01:
Because here the argument is the employer challenged the original decision, moved for reconsideration, then we have all this delay waiting for the Noel Canning issue to be resolved.

[00:33:26] Speaker 01:
And now the board comes back and says, we're starting all over again, and it adds something that wasn't there before.

[00:33:32] Speaker 01:
And all this delay, and yet why in that circumstance, which is unusual,

[00:33:45] Speaker 01:
wouldn't that constitute an extraordinary circumstance?

[00:33:49] Speaker 01:
Come within that.

[00:33:50] Speaker 03:
I would maintain that it would not, Your Honor.

[00:33:52] Speaker 03:
I would agree with the characterization, of course, that it is unusual and unfortunate.

[00:33:56] Speaker 03:
However, delay in itself is not extraordinary.

[00:33:59] Speaker 03:
I have a case I could

[00:34:00] Speaker 03:
refer the court to.

[00:34:01] Speaker 03:
I was not able to include it in my brief because this was an argument that came up in the reply brief, but it's this court's decision in Contractors' Labor Pool at 323 F.

[00:34:08] Speaker 03:
3rd, 1051 that says the delay in filing a petition for review or the seeking to avoid a delay in filing a petition for review does not constitute extraordinary circumstances.

[00:34:19] Speaker 01:
Oh, right.

[00:34:20] Speaker 01:
No, that's quite general.

[00:34:22] Speaker 01:
I understand that point, but here the employer already moved for reconsideration.

[00:34:29] Speaker 01:
Then the Noel Canning issue caused this delay.

[00:34:32] Speaker 01:
Then the board starts all over again and adds something.

[00:34:36] Speaker 01:
And as I understand it, the position the board's taking is that, no, you have to file another motion for reconsideration.

[00:34:43] Speaker 01:
Get the board to rule on that before you can come to court.

[00:34:47] Speaker 03:
Yes, Your Honor.

[00:34:48] Speaker 03:
This is, I mean, as I said, I characterize it as unusual.

[00:34:51] Speaker 03:
However, it's not as if this has never occurred before Noel Canning.

[00:34:53] Speaker 03:
Whenever there is a remand, issues go back to the board.

[00:34:56] Speaker 03:
There is a different general counsel and oftentimes, or not always, but oftentimes a different general counsel and different board members and priorities may have changed or the determination of what type of remedies are appropriate may change and it doesn't alleviate the obligation on the company to allow the board to address those arguments.

[00:35:14] Speaker 03:
In the first place, now I would also say about the adverse tax consequences that in my research preparing for today's argument, I wasn't able to find any situation

[00:35:21] Speaker 03:
in which a party has actually raised substantive arguments about the adverse tax consequence to the board.

[00:35:27] Speaker 03:
This was a change in priorities for the general counsel.

[00:35:30] Speaker 03:
And so the board has not addressed this court's decision in fog or the other type of arguments that the company has raised.

[00:35:36] Speaker 03:
And so without doing so, we maintain that the court doesn't have jurisdiction to consider that argument under attendee.

[00:35:43] Speaker 01:
Thank you.

[00:35:44] Speaker 03:
Thank you for the additional time.

[00:35:54] Speaker 05:
the court.

[00:35:58] Speaker 05:
Just to clarify, Judge Reuters, the dissident member, Mr. Johnson, called the group.

[00:36:04] Speaker 01:
Oh, I know it's in the dissent.

[00:36:06] Speaker 01:
I asked about the board majority.

[00:36:08] Speaker 05:
Okay.

[00:36:09] Speaker 05:
Okay.

[00:36:12] Speaker ?:
Thank you.

[00:36:12] Speaker 05:
What I would like to add is that the October 20th letter between my company and the union certainly shows that the wildcat strike undermined the union and was inconsistent with the strategy that the union was pursuing at that point in time, which, as my client's letter said, was not to strike at that time.

[00:36:35] Speaker 05:
We think the board is basically eviscerating Section 9

[00:36:40] Speaker 05:
by creating a presumption that a Wild Scotch strike is a protected action as long as the goals of the strikers are generally those of the union.

[00:36:52] Speaker 05:
We don't think that's what the Emporium case calls for.

[00:36:57] Speaker 02:
This is a factual question, but did the company consider asking the union to tell the employees to stop striking?

[00:37:07] Speaker 05:
Can you repeat the question?

[00:37:08] Speaker 02:
In other words, when the company gets the letter from the union that says that the union is opposed to the strike, why didn't the company tell the union then, well, tell the employees to stop striking?

[00:37:21] Speaker 02:
Why did the company give the letter directly to the employees through the security guards instead of

[00:37:27] Speaker 05:
I was there, but, you know, they were negotiating, they had agreed not to strike, and they were surprised.

[00:37:34] Speaker 05:
I think there's, on the record, Mr. Trigaro said, both the union and the company said, what's going on?

[00:37:40] Speaker 05:
We were negotiating, and all of a sudden we have a strike.

[00:37:43] Speaker 05:
So the attorney basically sent the letter to the union, hey, this is not what we agreed to, what's going on?

[00:37:51] Speaker 05:
And the union responded, this is not my doing, this is the small group.

[00:37:57] Speaker 05:
And then my client had it distributed to each other for that notice.

[00:38:03] Speaker 05:
Why they didn't do it another way?

[00:38:05] Speaker 02:
Why didn't the... I don't mean to suggest another way.

[00:38:08] Speaker 02:
It should have necessarily happened.

[00:38:10] Speaker 02:
I just didn't know if there was some fact that would tell us.

[00:38:12] Speaker 05:
I think they were reacting to an emergency situation, you know, stop it.

[00:38:15] Speaker 05:
You know how a strike has something that they were not expecting precisely because it was a wild-cast strike.

[00:38:25] Speaker 05:
That's why we are also requesting, or I think what we're saying in a sense is that Emporium

[00:38:33] Speaker 05:
really calls for wildcard strikes to be per se illegal.

[00:38:37] Speaker 05:
I mean, there in Emporium, the picketers had the same goals as the union.

[00:38:43] Speaker 05:
They both wanted to avoid racial discrimination, except the union did it through the Adjustment Board, and the picketers wanted to do it through picketing.

[00:38:52] Speaker 05:
And the picketers specifically requested an exception

[00:39:00] Speaker 05:
that the court created an exception to the principle of exclusive representation in cases of racial discrimination.

[00:39:09] Speaker 05:
And the court rejected it.

[00:39:11] Speaker 05:
The court rejected it.

[00:39:12] Speaker 05:
The court said, no, the exclusive representation is so important that if we allow, even for such incredible goals as to avoid racial discrimination, that the employees can go and pick it irrespective of what the union wants to do,

[00:39:30] Speaker 05:
that's not permissible under Section 9.

[00:39:34] Speaker 05:
There were other remedies, of course, under Section 7, but it says it's not permissible under Section 9.

[00:39:38] Speaker 05:
Specifically said, that's kind of, I quote, even if in actual bargaining the various groups do not perceive their interests as divergent and further subdivide themselves,

[00:39:51] Speaker 05:
the employer would be bound to bargain with them in a field largely preempted by the current collective bargaining agreement.

[00:39:58] Speaker 05:
In other words, you can't have the union negotiating here in a subgroup, even for the same goal, doing something different somewhere else.

[00:40:04] Speaker 05:
It's just not what the Section 9 calls for.

[00:40:12] Speaker 05:
Indeed, in Catwell, the court

[00:40:20] Speaker 05:
And I quote, also said that the court below, in the same way as the board did in this case, minimized the impact on the union by noting that it was not working across purposes with the dissident.

[00:40:34] Speaker 05:
It rejected that argument.

[00:40:37] Speaker 05:
So what we think Emporium calls for, and I think the Fornell versus NLRB case of this court, is that wildcard strikes should be per se legal.

[00:40:49] Speaker 05:
There is no difference, we think, in the violation of the Section 9 exclusivity principle, and in the case of Fornell, a non-strike clause.

[00:41:03] Speaker 05:
The ultimate goal of preserving the exclusive principle and avoiding what happened in this case,

[00:41:10] Speaker 05:
which is a subgroup basically taking over for the union, is what Section 9 requires, and that's why we asked this Court to reverse the board.

[00:41:19] Speaker 01:
Thank you.

[00:41:19] Speaker 01:
Thank you very much.

[00:41:20] Speaker 01:
We'll take the case under advisement.