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Case number 16-1338.

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Mark Sumosunis et al.

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Petitioners versus National Labor Relations Board.

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Mr. Taubman for petitioner, Ms.

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Collins for respondent, and Mr. Myers for then to be.

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May it please the Court, I'm Glenn Taubman for Mark Thomas-Iunas and other petitioning employees.

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In this case, a divided National Labor Relations Board held that no reasonable employee, not a single one of them, could have been restrained or coerced by the Union's objectively false March 2014 billing letter, which demanded payment of as much as

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$1,200 in back dues that no non-member actually owed.

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As member McFerrin wrote, the board majority failed to distinguish the board's prior decisions in Pomona Valley and on any legally sound basis, and the decision here must be reversed and remanded.

[00:01:48] Speaker 06:
Is this a case of coercion or restraint?

[00:01:51] Speaker 02:
Absolutely, Your Honor.

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Which one or both?

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Both.

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I'm really having trouble discerning anywhere how coercion is defined.

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Coercion to force somebody to do something that they're not otherwise obligated to do, which in this case

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is send a billing demand letter, a very strong billing demand letter to people who aren't obligated to pay it, and restraint, meaning to stop somebody from making a free choice about how they're going to board their relationship.

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I get that's your definition.

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I was trying to find in board decisions or case law helpful definitions on understanding the scope of

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coercion or restraint in this context?

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Because in other contexts, coercion is a very, very strong word.

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But in this case, it's still a strong word.

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But we also have this, if any reasonable employee could read it that way, which seems to be sort of a softer test.

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I'm trying to really understand what the nature of the inquiry is here.

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Well, I mean, I tried to give- There were board cases.

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Yeah.

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That's exactly where I was about to go.

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There's a- The United Parcel?

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The board found the union violated 8B1A by attempting to obligate nonmembers to pay dues for periods during which

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there was no union security clause in effect.

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That's exactly right.

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Threatening them with discharge if they failed to do so.

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Right.

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Tech well, same thing.

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Right.

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And Pomona Valley and the case that we cite that hasn't been discussed enough in the briefs is called Central Telephone, IBEW, Central Telephone, in which the board said, you don't need a threat.

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You don't need to tell someone you're going to be fired.

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if you don't pay this money.

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Just making a demand for money that you have no obligation to pay, that is illegal.

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And here... Right, so that's not an ordinary... This is a different sense of coercion than what we think maybe out in a sort of common law one, which tends to have manthreas and threaten... I get that there's no intent thing, so that's something to understand.

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But does that mean that any mistaken request

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or letter, just a letter, we decide what we want to call it, request or demand.

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Mistaken letter that says, complete mistake, just goes to one employee by mistake, one non-member or fair representation member by mistake, and says, it says,

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You owe this amount of money, and heads up, we're putting in the paperwork with the employer.

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Have a nice day.

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I think that would be restraint and coercion.

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The fact that it was a mistake doesn't mean that the reader, the employee whose rights are protected, and don't forget, Your Honor, this whole National Labor Relations Act

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is about protecting employees from employers and unions.

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It's not about protecting unions from employees.

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So the fact that, in your hypothetical, the letter was a mistake wouldn't change the fact that when I as an employee get a demand letter... Well, I mean, you've got to set it up, because those who don't work in label law, it's not intuitive.

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And if you take the case law here, I mean, what you're saying is these people, this group, gave prior notice to the union.

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We're not covered.

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So don't bill us before this all happened, as I recall.

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They sent a notice to the union, right?

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They sent a letter saying we don't want to be members and we don't want to pay.

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So the union had a prior correspondence from them.

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Notwithstanding that, the union sent them a letter, which is pretty strong in its terms, and then they sent a request from the employer and the employer deducted until the employer realized, oh, mistake.

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And then the interesting thing is, and I thought you would have argued it, when the unions asked

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Hey, what's going on?

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You read their letter.

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There's no mea culpa there.

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There's no, oh, we made a mistake.

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Sorry about that.

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And the only people with whom they're corresponding are this group, not all the rest.

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And there are other similarly affected employees.

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Your Honor, every... That's your argument.

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Yes.

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Let's say she doesn't work in label all the time.

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You've got to say, that's the context, Judge.

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It is different from, you should not say to her if one letter went out to an employee and the union says, oh, that's a mistake, that that would be coercion.

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No, it wouldn't be.

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It would be a mistake.

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Your argument here is if you take the facts in this case, the whole context, it's coercive.

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And when the union got a chance to say we apologize, it was a mistake, they didn't do that.

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Your Honor, you have just articulated my entire argument.

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I believe it's in the briefs.

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Well, you can sit down and hear what the Board says.

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Well, I don't want you to sit down yet, because now I'm very confused.

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And I am not an expert labor lawyer like Judge Edwards here.

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So help me understand, because I got some real confusion from both sides' briefs here.

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And that is, what time frame do we use for determining whether the

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coerced to pay.

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And that is because sometimes you say it's the four corners of the letter.

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And then by your reply brief you go, no, no, no, include the fact that actual garnishments were made.

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afterwards, but we can't look four days later and say they apologize for it.

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So I'm trying to understand, is it, do we ask, when you look at the letter, because you can imagine, maybe someone read this letter and goes, let's say a reasonable person read this letter, or my hypothetical letter, and go, this is clearly a mistake.

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But then, they get the notice from their employer, their paycheck, and it's missing 60-something dollars.

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They go, that's not a mistake, this is terrible, this is horrible, they're taking my money,

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I'm clearly not being able to exercise my rights.

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They just made me pay money, I don't know.

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So now they feel like their rights have been violated.

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And then they get the apology, and they go, oh, it was just a mistake.

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So what's the right time frame?

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Was there an apology letter in here?

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In my house.

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The apology from the employer.

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Hyatt said we made a mistake.

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There wasn't an apology letter here.

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It wasn't from Hyatt.

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Oh, excuse me?

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There was an apology from Hyatt.

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They said they made a mistake.

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From the employee.

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From Hyatt, yes.

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There was no apology from the union.

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No, no, no.

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I get that.

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I get that.

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But I want to make an important point.

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I think Judge Edwards articulated a lot of this already, but there was no mistake in this case.

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No, I'm asking a time frame question.

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I'm trying to understand the scope of my inquiry, because both sides have been all over the place on, is it the four corners of the letter, is it my context but not your context?

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Generally, I think it's the overall context.

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But to directly answer your question,

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If you just look at the four corners of this letter, I don't understand how any reasonable employee would not have your cake needed, too.

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I mean, answer the question.

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You say generally it's the overall context, but here we look at the four corners of the letter.

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Which is it?

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In what case are you citing

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for which proposition?

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All parties, I believe, agree that you look at the general context to find what an objective employee would have believed.

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What my answer to Judge Millett is, whether you look at the four corners of this letter— Will you say—I can't ask you when the generally doesn't apply?

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When?

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Well, in this case,

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It was only a week or so later that the deductions were made.

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No, no.

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You said, generally, we're going to look.

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To both of us, you use that nice lawyer word called generally, which means there must be exceptions.

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I don't have a case that I can cite to you on the when.

[00:09:27] Speaker 05:
The cases that the board has previously promulgated or issued results consistent with what you want involve a situation where the union makes a demand for dues that they can't collect.

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That's it.

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There's no general beyond that.

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You've got to stay within this framework.

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And I thought your argument was they demanded money for a period when they could not demand money.

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That's correct.

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That's the end of my argument.

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You shouldn't be talking about, well, generally this, generally that.

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We're not going to write a case that talks about general.

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If you win, it's because they demanded money for a period with respect to which they had no right to demand money.

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And it was clear that that's what they were demanding it for.

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And they never apologized for it.

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And the employer realized it was a mistake, but that period.

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And that's it.

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That's all we're talking about.

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Your Honor, that is my argument.

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I'm trying to respond to the questions.

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The letter itself, as in many other prior cases, whether it's Pomona Valley or Central Telephone or Kaiser Hospital, the letter itself contains an illegal demand, and in this case, a very threatening illegal demand.

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The Pomona standards are clear.

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This letter is not factually or legally distinguishable from Pomona.

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It's clear that employees receiving this would have been threatened.

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I cite former NLRB chairman William Gould, who said in the Bloom Group health case, everyone knows that this area is fraught with ambiguity when a union says membership

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It could mean many different things.

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This union security clause required membership and so any reasonable employee would be coerced upon receiving this letter.

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My time is up for now and I will thank you.

[00:11:31] Speaker 05:
So it's no surprise where

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I have questions, right?

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I just tell you so you can answer for what they're worth.

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I don't know, looking at Pomona and some of the other cases that I've looked at, I don't know how you get around them.

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You can't make a demand.

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It's not the single employee.

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It's not a situation when the union comes back and says, oh, good heavens, we made a mistake.

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Sorry about that.

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It's a very clear demand.

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And the board cases are clear.

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Very clear demand for money.

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that you're not entitled to for this period for which that money is demanded.

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Now, it's icing on the cake for them that some money was actually taken out.

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You don't even need that.

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How do you get around those cases?

[00:12:13] Speaker 01:
Well, essentially what petitioners are arguing and how you're framing the case law is that a demand alone is sufficient to cause coerciveness.

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And that's simply not what the case law shows.

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There needs to be something.

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And I think this goes to Judge Millett.

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Your point is, what is the coerciveness?

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The coerciveness speaks to

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doing something you don't have to, that you have a section seven right to not do.

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So the coerciveness speaks, is linked to these union security clauses.

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So you are coerced to paying money during a time period where you're not because of the union security clause.

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But how do you not have that here in two respects?

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One, they didn't give these employees any choice.

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They said,

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And we're taking the money out of your next paycheck.

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And that same day, it wasn't like people could come forward and say, hang on, there's a mistake.

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That same day, they turned the paperwork into HIAT and said, take it out.

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So that seems to me at a minimum to have prevented them from exercising their rights for that two-week period not to pay these dues to the union.

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And secondly, they said, we're going to kick you out.

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You're not going to be a member of the union.

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But membership in the union is required for a job.

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So those are my two, within the letter.

[00:13:32] Speaker 01:
Yes.

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So I'm going to try to answer them in turn.

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The first being the letter itself.

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There's absolutely no mention of a contract in this letter as any demand being resulting from the contract, let alone the specific union security clause.

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It's simply not, it's not there.

[00:13:51] Speaker 05:
I saw your argument there.

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I don't know why that matters.

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So what?

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They're clearly making a demand.

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Of course they couldn't, that would even be worse if the union said, it's not that what they did was good, it was just what you're posing would be even worse to lie and say that the contract was in effect.

[00:14:06] Speaker 05:
It wasn't in effect.

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And the employee has already given notice.

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Don't charge us anything.

[00:14:12] Speaker 01:
So that's the main point.

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So the violation occurs when you're making the demand and linking it to a contract in which you do not have an obligation.

[00:14:23] Speaker 01:
How could they make the demand?

[00:14:25] Speaker 01:
I'm sorry?

[00:14:25] Speaker 01:
How could they make the demand?

[00:14:27] Speaker 01:
They have no basis.

[00:14:29] Speaker 01:
Well, yeah, here it's right.

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I mean, they didn't.

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It was a mistake.

[00:14:32] Speaker 01:
No, no.

[00:14:33] Speaker 05:
That's what you want in the worst way for us to believe.

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And I might have at least wavered

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If the union's response had been interesting, the union's response was like, get out of my face.

[00:14:47] Speaker 01:
Are you referring to the letter?

[00:14:48] Speaker 05:
Yeah, come on.

[00:14:50] Speaker 05:
I've seen enough of these.

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There was kind of a back of the hand.

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Get out of here.

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And you know that as well as I do.

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That was not, whoa, we made a mistake.

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What we meant to say was, well, if you really want to be a part of the apparatus, that's nonsense.

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That's not an apology.

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We made a mistake.

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That was like when we got caught.

[00:15:07] Speaker 01:
And that would be relevant if the applicable legal standard, the union state of mind mattered.

[00:15:14] Speaker 01:
Here we're looking at what employees reasonably in the petitioner's shoes would if they would have a tendency to be coerced.

[00:15:21] Speaker 01:
You want me to read you the board authority again that I read to them that they should have been arguing?

[00:15:25] Speaker 05:
The board says when you make a demand of employees like this, this is not one employee, it's coercive.

[00:15:33] Speaker 05:
And I understand what Judge Millett is asking.

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Is that coercion the way we normally understand it?

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No.

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But in the context of the NLRA, it is coercive.

[00:15:43] Speaker 05:
Because you have no authority to do it.

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And the relationships are so tricky and tenuous anyway, there's always battles going on.

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And these are employees who don't want to be members of the union, don't want to even have to pay anything.

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And they said, don't charge us when that contract expires.

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And the union did.

[00:16:00] Speaker 01:
And again, I would just like to stress that the case law does not say that a mere demand is sufficient.

[00:16:06] Speaker 06:
But this wasn't a mere demand.

[00:16:07] Speaker 06:
I mean, if we think about wage employees,

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Even me, if I got a letter from someone that said, by the way, you owe me this and it's going to be out of your next paycheck.

[00:16:20] Speaker 06:
Have a nice day.

[00:16:21] Speaker 06:
I'm going to be stressed out, right?

[00:16:23] Speaker 06:
People can't, a lot of people can't live paycheck to paycheck.

[00:16:27] Speaker 06:
They can't have $60 missing out of paychecks.

[00:16:31] Speaker 06:
That is, isn't that a real, we don't even need to go to your high bill, near demand.

[00:16:39] Speaker 06:
Please pay.

[00:16:40] Speaker 06:
We don't have to go there because there was a threat here, or more than a threat, even worse, it's an implementation of forced payment in the letter itself.

[00:16:50] Speaker 06:
Why isn't that enough to make a difference?

[00:16:53] Speaker 01:
I'm sorry.

[00:16:54] Speaker 01:
I'm not sure I completely understand.

[00:16:56] Speaker 01:
So your hypo is... Not hypo.

[00:16:59] Speaker 01:
This letter said... That this is not a mere demand, that it's a demand.

[00:17:01] Speaker 06:
It's not a demand because it didn't just say, hey, you owe me, please pay.

[00:17:04] Speaker 06:
Here's a coupon below.

[00:17:05] Speaker 06:
It said, you owe me.

[00:17:09] Speaker 06:
And we're taking it out of the next paycheck.

[00:17:11] Speaker 06:
And it also says... It'll be gone out of your next paycheck.

[00:17:14] Speaker 01:
The rationale as to why you owe me, I mean the rationale is based on membership and petitioners... And membership is something I have to have to keep my job.

[00:17:23] Speaker 01:
And petitioners know and have previously for years

[00:17:27] Speaker 01:
asserted that right to be financial corps members or member-like.

[00:17:31] Speaker 01:
They knew what that meant.

[00:17:33] Speaker 01:
They knew.

[00:17:33] Speaker 06:
Members, yes.

[00:17:34] Speaker 06:
And they're told they're not going to be members.

[00:17:35] Speaker 06:
And even put that aside, I think that's a problem in its own right.

[00:17:38] Speaker 06:
But I just, I want you to ask, answer my question.

[00:17:40] Speaker 06:
Why isn't this more than a demand when they say money will be missing from your next paycheck?

[00:17:47] Speaker 01:
is a demand to collect.

[00:17:49] Speaker 06:
Money will be missing from your next paycheck.

[00:17:52] Speaker 01:
Yes.

[00:17:52] Speaker 06:
If someone walked up on the street with a gun and said, I'm going to take money out of your paycheck, there'd be no question that's coercive and more than a mere demand to pay.

[00:18:01] Speaker 06:
They take money out of them.

[00:18:04] Speaker 06:
They've got nothing they can do about it.

[00:18:05] Speaker 06:
That seems to be much worse.

[00:18:07] Speaker 01:
In the face of the letter and saying that they're going to, or you have to make arrangements, and if you don't.

[00:18:12] Speaker 06:
They didn't say make arrangements.

[00:18:14] Speaker 06:
That very day.

[00:18:15] Speaker 06:
They didn't wait for anyone to make arrangements.

[00:18:17] Speaker 06:
The same day the letter went out, they were at Hyatt giving them the list and the amount of money to dock from everybody's pay the same day in this record.

[00:18:25] Speaker 01:
So I just want to just clarify in terms of the face of the letter.

[00:18:28] Speaker 01:
The letter does provide for the only option here.

[00:18:32] Speaker 01:
And I see that my time is running.

[00:18:33] Speaker 01:
May I continue?

[00:18:35] Speaker 01:
The only option is not to have the fees or the dues deducted.

[00:18:41] Speaker 01:
There also is, it does say that if that doesn't happen, you're responsible for this, and then it goes on.

[00:18:48] Speaker 06:
To facilitate this, we have billed your employer for the balance listed below in the first line.

[00:18:54] Speaker 06:
A deduction will be reflected on upcoming pay stub.

[00:18:57] Speaker 05:
Your dues must be made current.

[00:18:59] Speaker 01:
And I think that's where the fact that the petitioners and similarly situated employees were not full dues paying members, and they knew that.

[00:19:09] Speaker 01:
They knew that.

[00:19:10] Speaker 01:
Everyone was on the same page.

[00:19:12] Speaker 01:
So to say that they would read this and just forget that for years that had been acknowledged as financial core.

[00:19:18] Speaker 05:
See, well, then you're skipping over what the act intends to protect.

[00:19:22] Speaker 05:
What you're posturing is, look, these should be strong people.

[00:19:26] Speaker 05:
They should say, oh, heck with this stupid union and this nonsense.

[00:19:32] Speaker 05:
That's not what the act is supposing.

[00:19:34] Speaker 05:
The act is supposing that there are all kinds of players, some of whom are easily intimidated and coerced by precisely this kind of behavior, some of whom would look at this and say, throw it in the trash.

[00:19:46] Speaker 05:
And a reasonable person could be coerced by this.

[00:19:49] Speaker 05:
Because it says your dues must be made current and we're going to go to the employer and get the money.

[00:19:57] Speaker 06:
We've already told the employer to play actually.

[00:20:00] Speaker 01:
And I think just briefly, the time period that we're kind of looking at is not so much what happens after, but when the employees receive

[00:20:08] Speaker 01:
the letter.

[00:20:10] Speaker 01:
But it's crucial that these employees for years have asserted their right under Section 7 to not be full members.

[00:20:19] Speaker 06:
We have billed your employer.

[00:20:22] Speaker 06:
Yes.

[00:20:22] Speaker 06:
We have billed your employer.

[00:20:23] Speaker 01:
Yes.

[00:20:24] Speaker 06:
That means I'm demanding payment and I am collecting it.

[00:20:29] Speaker 06:
I'm going to take it right out of your pocket.

[00:20:31] Speaker 06:
I'm not waiting for you to mail me anything.

[00:20:32] Speaker 06:
How is that

[00:20:34] Speaker 01:
But what the board reasoned here is that would not be coercive because a reasonable employee in that situation would know that, would think that it was obviously a mistake.

[00:20:44] Speaker 06:
Why isn't it restraint?

[00:20:46] Speaker 06:
You have restrained them from exercising their right not to pay.

[00:20:50] Speaker 01:
This was, I think that this is, the board here was saying that it was not a coercion.

[00:20:55] Speaker 06:
Okay, there's two words, restraint.

[00:20:57] Speaker 01:
Yes.

[00:20:57] Speaker 06:
Why are they not restrained from exercising their right not to pay this amount?

[00:21:01] Speaker 06:
How are they not restrained by this letter?

[00:21:03] Speaker 01:
That would be a separate charge.

[00:21:06] Speaker 01:
So the actual deduction could be, could be

[00:21:10] Speaker 01:
a separate violation of the act, which is not at issue here.

[00:21:15] Speaker 01:
Here, we're talking about whether the letter, just the letter itself.

[00:21:19] Speaker 06:
You're saying unions can't restrain people?

[00:21:21] Speaker 01:
Oh, no.

[00:21:21] Speaker 01:
Oh, I'm sorry.

[00:21:22] Speaker 01:
I didn't mean to say that at all.

[00:21:23] Speaker 06:
So the union is restraining them by saying, we're demanding this money, and there's nothing you can do about it.

[00:21:29] Speaker 06:
You don't get to exercise your right not to pay me because I'm getting it from your employer.

[00:21:34] Speaker 01:
What I was intending to say is that that could be, that could be a legal theory of the case.

[00:21:39] Speaker 01:
It is not here, and the finding that the board made here is not dependent upon that.

[00:21:44] Speaker 01:
And here, what the board is, essentially what petitioners have to show is that it was arbitrary and unreasonable for the board to decide this.

[00:21:52] Speaker 01:
The board reasonably relied upon the fact that for years, everyone was on the same page.

[00:21:57] Speaker 01:
They weren't full members.

[00:21:58] Speaker 01:
Everyone knew this.

[00:21:59] Speaker 01:
If they would receive this, it would be reasonable.

[00:22:03] Speaker 05:
The union wouldn't have sent the letter.

[00:22:05] Speaker 05:
I'm sorry?

[00:22:05] Speaker 05:
The union shouldn't have sent the letter then.

[00:22:08] Speaker 05:
That's like saying an employee wants to get into an operation and union advocates are blocking the door and they say, I'm going to punch you in the face if you move.

[00:22:19] Speaker 05:
And what's your argument?

[00:22:20] Speaker 05:
Well, a reasonable person would know the union can't do that.

[00:22:23] Speaker 05:
But we know that that's coercive under the Act, right?

[00:22:26] Speaker 01:
Yes.

[00:22:27] Speaker 01:
I mean, I think that would be a different situation here.

[00:22:29] Speaker 05:
I can't figure out how you're drawing the lines.

[00:22:33] Speaker 01:
Well, I think that being punched in the face is a little different.

[00:22:35] Speaker 01:
All right.

[00:22:36] Speaker 06:
Instead of saying, hand over your wallet, and then you can go.

[00:22:38] Speaker 06:
I'm sorry?

[00:22:39] Speaker 06:
Hand me over your wallet.

[00:22:40] Speaker 06:
I'm going to take some money out, and then you can go.

[00:22:42] Speaker 01:
I think that would also be a different situation as we have here.

[00:22:45] Speaker 06:
How is this any different than saying, hand over your wallet, and then you can go?

[00:22:48] Speaker 01:
It's coercive.

[00:22:49] Speaker 01:
Well, here they would know when they're seeing this, this isn't right.

[00:22:55] Speaker 01:
that they would know that.

[00:22:57] Speaker 01:
They would know that.

[00:22:58] Speaker 01:
So just because of the fact that there's a mistake that was made, maybe, or you know, and the board didn't find that.

[00:23:05] Speaker 01:
So just to be clear, I do want to be clear, the board did not find that this was a mistake.

[00:23:10] Speaker 01:
The board found that an employee, a reasonable interpretation would be that it was a mistake, that everyone would know that this was wrong.

[00:23:19] Speaker 01:
I see that my time has long expired.

[00:23:21] Speaker 04:
I have a question about the union's

[00:23:25] Speaker 04:
I guess, letter of clarification.

[00:23:29] Speaker 04:
It's at J136.

[00:23:30] Speaker 04:
So the union says, you know, what we were referring to is what you would have to pay in order to become a full member.

[00:23:45] Speaker 04:
And then in the second paragraph it says, if you wish to enjoy the full benefits of membership, you must pay the dues amount listed in the statement.

[00:23:58] Speaker 04:
And there it was $674 in some odd sense.

[00:24:11] Speaker 04:
Would this petitioner

[00:24:14] Speaker 04:
to join the union have to pay that full amount?

[00:24:19] Speaker 04:
Or would they just have to start paying like as of that day, whatever it is that would pertain to joining the union?

[00:24:35] Speaker 01:
I don't know the exact, the amounts differ.

[00:24:37] Speaker 01:
So the amount that you had was for one particular person.

[00:24:41] Speaker 01:
But I don't, I simply don't know.

[00:24:43] Speaker 01:
That depends on the unions.

[00:24:45] Speaker 04:
Here's my point.

[00:24:47] Speaker 04:
Let me ask the question more directly.

[00:24:51] Speaker 04:
Is this second subsequent letter also misleading because it says in order to become a member, you've got to pay all these past dues as opposed to saying, hey, if you want to become a member today, start paying today and the monthly amount is 60 bucks and that's what you owe and you can start paying that today.

[00:25:14] Speaker 01:
Well, the board didn't make a finding on that, but I would have to say no, because the unions can do that.

[00:25:19] Speaker 01:
They can say, OK, in order to become a full member, you have to pay initiation dues.

[00:25:25] Speaker 01:
So it doesn't necessarily start the moment in time where they want to be full members.

[00:25:30] Speaker 05:
And that will depend on the union and what its constitution and bylaws say.

[00:25:33] Speaker 01:
That's exactly correct.

[00:25:35] Speaker 04:
But it doesn't appear that what was written here

[00:25:40] Speaker 04:
as far as becoming a member was linked to

[00:25:46] Speaker 04:
whatever the Constitution and bylaws says, it was linked to what they construed to be the past due amount, right?

[00:25:54] Speaker 01:
Yes.

[00:25:55] Speaker 01:
That's correct.

[00:25:56] Speaker 01:
And the main point of the follow-up letter, I think the follow-up letter highlights that the previous letter was linked to the union's internal procedures, internal rules, not the union security clause from the expired collective bargaining agreement.

[00:26:12] Speaker 01:
All right.

[00:26:13] Speaker 04:
I know your time is up, but how does our standard of review impact

[00:26:16] Speaker 04:
what we should do here.

[00:26:19] Speaker 01:
Well, the standard of review is essentially when the board dismisses a complaint, the court should deny a petition for review if that dismissal was reasonable and supported by the evidence.

[00:26:34] Speaker 05:
And so essentially... So long as it's not inconsistent with established board law.

[00:26:39] Speaker 05:
If the board's decision in this case is inconsistent, in our view, with established precedent, we can strike it down.

[00:26:46] Speaker 01:
That is correct.

[00:26:48] Speaker 01:
Thank you very much.

[00:27:00] Speaker 05:
Before I say something bad, did you draft that letter?

[00:27:06] Speaker 03:
I would not admit it if I did.

[00:27:09] Speaker 03:
Smart man.

[00:27:11] Speaker 05:
Well, in fact... I'm talking about the supposed neocultural order.

[00:27:16] Speaker 05:
but not a mere culprit, a non-mere culprit.

[00:27:21] Speaker 03:
I have a short period of time, but I want to be responsive to the questions that the panel has.

[00:27:29] Speaker 03:
Let me say most directly, every one of the board cases, when we talk about board precedent, every one of the board cases, the cases cited by petitioners, I believe the case that you referred to, Judge Edwards,

[00:27:46] Speaker 03:
There is a threat either implicit or explicit to enforce a union security obligation.

[00:27:53] Speaker 03:
In most cases, the union's communication explicitly tells employees that if they do not

[00:28:02] Speaker 03:
pay past dues, they will be fired.

[00:28:06] Speaker 06:
I get that.

[00:28:08] Speaker 06:
Here's what, as I was reading all the materials in this case, I couldn't understand why the board, and you were saying the only threat here was loss of full union membership.

[00:28:20] Speaker 06:
When I, as a non-labor law expert, read that letter and saw

[00:28:29] Speaker 06:
You don't have any choice in this.

[00:28:30] Speaker 06:
We're taking money out of your paycheck.

[00:28:35] Speaker 06:
And you're no longer gonna be a member, and membership's required for your job.

[00:28:40] Speaker 06:
One, two, you can address them separately.

[00:28:42] Speaker 06:
Why isn't one, this is more than just a, we've done the math, you owe this money, please send it in.

[00:28:49] Speaker 06:
This is a demand accompanied by

[00:28:55] Speaker 06:
threat or at least a restraint in the form of, you may think you don't have a right to pay us, but you're mistaken.

[00:29:02] Speaker 06:
We are taking that money now.

[00:29:04] Speaker 03:
I think there may be a misconception in terms of the part of that analysis that you just laid out.

[00:29:12] Speaker 03:
Petitioners knew and the law provides that they did not have to be members of the union in order to retain their jobs They had not been members of the union for years when they when they Which is not membership at all it's the word membership is irrelevant to that there is a

[00:29:36] Speaker 03:
a duty to pay the representational fee during the time that there's a contract with the union security obligation in effect.

[00:29:46] Speaker 03:
But there's no membership.

[00:29:48] Speaker 03:
And all this letter does, and it's obviously an unfortunate letter in terms that the fact that it was sent to these

[00:29:56] Speaker 03:
uh... to the petitioners but what the letter does is it tells them that if they do not clear their rearage they will be suspended from their union membership the board quite reasonably analyze that letter with its with the text of that letter within the context the context the relevant context being that my client has never done anything

[00:30:23] Speaker 03:
over the course of years to either threaten or suggest or coerce these employees.

[00:30:28] Speaker 06:
You address that we're taking your money.

[00:30:31] Speaker 06:
How is that not restrained?

[00:30:34] Speaker 06:
There's money you think you don't have to pay us under the National Labor Relations Act.

[00:30:41] Speaker 06:
We're taking it out of your paycheck.

[00:30:44] Speaker 06:
Have a nice day.

[00:30:46] Speaker 05:
You know, for future reference, I hear what your argument is, but I must say, you know, as a legal matter, I'm not entirely sure how much relevance I should attach to it.

[00:30:56] Speaker 05:
But that follow-up letter from the union for me is amazingly damning, because if all of your premises are correct, that's not the letter that would have come from the union.

[00:31:06] Speaker 05:
And so it's laughable to me that the board says, oh, this was just a mistake, because the union could have nailed that call.

[00:31:14] Speaker 05:
And that would have tied to the argument that you're trying to make.

[00:31:18] Speaker 05:
That's a simple letter to write.

[00:31:21] Speaker 05:
I am an attorney.

[00:31:22] Speaker 05:
I've been in this area.

[00:31:23] Speaker 05:
I know how to write that letter.

[00:31:24] Speaker 05:
It would have taken one second, and you're done.

[00:31:27] Speaker 05:
And that's not what the union wrote.

[00:31:29] Speaker 05:
And for me, all it does is continue the effect of the coercion.

[00:31:35] Speaker 05:
And there's no way you can get out from that.

[00:31:36] Speaker 05:
And you know that as well as I do.

[00:31:38] Speaker 05:
I mean, you don't have to admit anything, but I'm just telling you for future reference, that was a terrible mistake.

[00:31:43] Speaker 05:
If you meant for it to only be a mistake, you clear it up just like that and you say, whoa, we got this all out of line.

[00:31:50] Speaker 05:
Of course, you don't know anything.

[00:31:51] Speaker 05:
That's not what that letter says.

[00:31:53] Speaker 03:
Well, if I may respond to that, in terms of timeline, what is this context in which we're looking at?

[00:32:00] Speaker 03:
Certainly, the petitioner's past experience of never having been coerced or threatened or anything.

[00:32:06] Speaker 05:
I may never have had a demand for my wallet when I walk in the gate.

[00:32:11] Speaker 05:
for 20 years.

[00:32:12] Speaker 05:
It doesn't mean it's not coercive when some union representative now does it.

[00:32:18] Speaker 03:
I grant you, if there had never been a threat for 20 years and on March 31st the union had said, pass this money or we'll have you fired, under board law that would have been illegal.

[00:32:30] Speaker 03:
Not this letter I would respectfully submit, but under board law... We're reading the case law differently.

[00:32:35] Speaker 03:
Okay.

[00:32:37] Speaker 03:
When we look, and it should be noted that the fact that Hyatt deducted the money was dismissed as a factual element.

[00:32:47] Speaker 06:
I am talking about the letter itself, which said we are taking the money.

[00:32:54] Speaker 06:
We're taking it.

[00:32:55] Speaker 06:
We're not going through you.

[00:32:56] Speaker 03:
So if I may proceed, I think Judge Edwards is also talking about facts that occurred after the fact.

[00:33:03] Speaker 06:
For my purposes now,

[00:33:04] Speaker 05:
No, I don't have to rely on them.

[00:33:06] Speaker 05:
I'm just telling you, as a real matter, when you're looking at a record, it's hard not to have that hit you in the head.

[00:33:15] Speaker 03:
So let me say this and then I'll address it.

[00:33:19] Speaker 03:
It's impossible to look at the facts that happened after without Hyatt, the employer, only four days after the deduction was actually made.

[00:33:27] Speaker 03:
If the deduction is of such importance, Hyatt says, this deduction was an error.

[00:33:34] Speaker 03:
This deduction won't take place again.

[00:33:36] Speaker 05:
And they were smart.

[00:33:37] Speaker 05:
They knew, we're not going to get any unfair labor pressure charge filed against us.

[00:33:40] Speaker 05:
We're going to quickly clean this up.

[00:33:42] Speaker 05:
The union didn't.

[00:33:44] Speaker 05:
So if you're going to go to the after a fact, all you're doing is making your case worse.

[00:33:48] Speaker 05:
Because Hyatt protected itself.

[00:33:50] Speaker 05:
There's not going to be any ULP charge filed against us.

[00:33:53] Speaker 05:
We now realize this was a mistake, and we're correcting it.

[00:33:56] Speaker 05:
That's not what the union tried to do.

[00:33:57] Speaker 03:
Well, this is not about the union's intent.

[00:34:00] Speaker 03:
This is about what?

[00:34:02] Speaker 03:
This is not about the union's intent, because if the union intended to coerce them or didn't intend, that wouldn't matter.

[00:34:10] Speaker 05:
Strictly with the facts.

[00:34:11] Speaker 05:
Let's say you look at that letter.

[00:34:13] Speaker 03:
This is about the coercive impact upon the employees.

[00:34:17] Speaker 03:
And the board read the letter, to your point,

[00:34:21] Speaker 03:
and the board applied the statute, statutory terms, and looking within the context of the four corners of that letter and everything that preceded it that would have provided that sort of mental space for those employees to read it, the board found that the employees would conclude that the letter was sent in mistake, that the letter would not coerce them.

[00:34:44] Speaker 06:
The employee's walking into the plant.

[00:34:45] Speaker 06:
He's been doing it for 20 years.

[00:34:47] Speaker 06:
No one's ever objected.

[00:34:49] Speaker 06:
And this day, this Tuesday, the employee walks into the plant and union official says, hand over your wallet.

[00:34:56] Speaker 06:
You owe us 60 bucks.

[00:34:58] Speaker 06:
The employee goes, I don't owe you 60 dollars.

[00:35:00] Speaker 06:
I'm only paying fair representation.

[00:35:03] Speaker 06:
Goes into work, puts on the uniform, leaves the wallet in the locker.

[00:35:07] Speaker 06:
While he's working, the employee unlocks the locker at the directional union and you take $60 out of the wallet and go away.

[00:35:17] Speaker 06:
Has that person been restrained in their right not to pay the union that money?

[00:35:22] Speaker 03:
In that hypothetical, I think if there was a—I mean— Don't give me an answer.

[00:35:27] Speaker 06:
In that hypothetical, has that employee been restrained in their ability— If the union stole money and committed a theft from the employees— By hypothetical, it's exactly what it is, and you don't get to add anything in, and that is the employer unlocks the locker, and you take out the $60 of that person who said they didn't want to pay.

[00:35:42] Speaker 06:
Have they been restrained, and they're right not to pay?

[00:35:45] Speaker 03:
If the purpose was to require the employee to maintain membership as a condition of work, then yes, as a condition of work.

[00:35:56] Speaker 03:
If it was not as a condition of work, it would not be restraint as those terms have been applied by the National Labor Relations Board.

[00:36:09] Speaker 06:
In your view, they have to be threatened with loss of job.

[00:36:12] Speaker 06:
It's not enough that they're threatened with loss of pay.

[00:36:16] Speaker 03:
Look, if the union showed up with a two by four in an alley and said, give me your money and I'll break your knees.

[00:36:22] Speaker 06:
My question is, your position is that they have to be restrained, they have to be coerced in terms of losing their job.

[00:36:31] Speaker 06:
Not losing portions of their paycheck will not suffice.

[00:36:34] Speaker 03:
Yes or no, that's correct.

[00:36:36] Speaker 03:
If it's just The money and not related to any threat of violence or any threat of job That's not the case law thank goodness That's not the case law You want to sum up real quick?

[00:36:49] Speaker 03:
I'm sorry.

[00:36:49] Speaker 06:
Do you have a sum up sentence?

[00:36:52] Speaker 06:
Did you want to sum up real quick?

[00:36:53] Speaker 03:
Yes in

[00:36:58] Speaker 03:
I would submit this, if the standard of panels should apply, means anything, should defer to the board.

[00:37:06] Speaker 03:
There has been several decision makers look at this letter.

[00:37:10] Speaker 03:
We've had the two board members.

[00:37:13] Speaker 03:
We've had the regional director of region 20 look at it and found it not coercive.

[00:37:17] Speaker 03:
We had the ALJ look at it and find it not coercive.

[00:37:21] Speaker 03:
And there's been a board member, a dissenting board member, who looked at it and found it coercive.

[00:37:27] Speaker 03:
Within that range of reaction, and I understand that legal analysis is not the same as nose counting, but it is clearly within the mainstream to find that the letter did no more than it stated on its face, which is to tell employees

[00:37:44] Speaker 03:
that if they did not clear their rearage, they would be suspended from the union membership.

[00:37:49] Speaker 03:
These employees who have... Okay, thank you.

[00:37:51] Speaker 03:
I think we got you some of them.

[00:37:52] Speaker 06:
Thanks very much.

[00:37:54] Speaker 06:
All right, let's see.

[00:37:57] Speaker 06:
Did Mr. Taubman have time left?

[00:37:59] Speaker 06:
Okay, I'll give you two minutes.

[00:38:03] Speaker 02:
Thank you very briefly.

[00:38:04] Speaker 02:
First, counsel is wrong.

[00:38:06] Speaker 02:
The board cases say consistently that you do not need a threat tied to discharge.

[00:38:14] Speaker 02:
You do not need a threat tied to an existing union security clause.

[00:38:19] Speaker 02:
Central Telephone Electrical Workers 229 and LRB 469 merely by, quote, notifying non-union bargaining and employees that they would be required to pay union dues, unquote.

[00:38:33] Speaker 02:
That's the violation.

[00:38:35] Speaker 02:
Pomona Valley, the threat to collect dues and fees, quote, unquote.

[00:38:41] Speaker 02:
That's the violation.

[00:38:43] Speaker 02:
It's the threat

[00:38:44] Speaker 02:
It's the notification that you owe money.

[00:38:47] Speaker 02:
The union is your fiduciary.

[00:38:50] Speaker 06:
You're aware of where the letter said it'll be out of your paycheck, we've gone to the employer and it's going to be gone from your next paycheck?

[00:38:57] Speaker 02:
I don't know of any case quite like this one.

[00:39:00] Speaker 06:
Or they said salary.

[00:39:02] Speaker 02:
I don't know of any case quite like this one, where they tie it to, we're going to automatically deduct it from your salary.

[00:39:09] Speaker 02:
So they're wrong on the law.

[00:39:11] Speaker 02:
Number two, the standard of review for this court is the court has refused to enforce board orders that, quote, depart from precedent without reasoned analysis, unquote.

[00:39:24] Speaker 02:
Manor care via NLRB from 2016, that is the governing standard

[00:39:30] Speaker 02:
this board without reasoned analysis departed from the cases that I just cited and that's this case in short order unless the board has any questions.

[00:39:40] Speaker 02:
That's it.

[00:39:40] Speaker 02:
Thank you very much.

[00:39:41] Speaker 02:
We ask that the case be reversed and or remanded for a proper decision.

[00:39:49] Speaker 06:
Thank you.

[00:39:49] Speaker 06:
Thank you.

[00:39:50] Speaker 06:
The case is submitted.