[00:00:01] Speaker 02:
Case number 17-1238 at L, Midwest Terminals of Toledo International Inc.

[00:00:06] Speaker 02:
Petitioner versus National Labor Relations Board, Midwest 2.

[00:00:11] Speaker 02:
Case number 17-1239 at L, Midwest Terminals of Toledo International Inc.

[00:00:16] Speaker 02:
Petitioner versus National Labor Relations Board, Midwest 3.

[00:00:20] Speaker 02:
And case number 18-1017 at L, Midwest Terminals of Toledo International Inc.

[00:00:26] Speaker 02:
Petitioner versus National Labor Relations Board, Midwest 1.

[00:00:31] Speaker 02:
Mr. Tolendzik for the petitioner, for the respondent, National Labor Relations Board, Ms.

[00:00:37] Speaker 02:
Roger Paske for Midwest 1, Ms.

[00:00:40] Speaker 02:
Beer for Midwest 2, and Ms.

[00:00:42] Speaker 02:
Johnson for Midwest 3.

[00:00:53] Speaker 04:
Good morning.

[00:00:54] Speaker 04:
May it please the Court?

[00:00:56] Speaker 04:
Petitioner Midwest maintains that

[00:00:59] Speaker 04:
The board's decisions in all three matters are not, excuse me, are irrational, arbitrary, and not substantially supported by the record evidence.

[00:01:08] Speaker 04:
In Midwest 1, the board made a ruling with respect to due checkoff, which was also a violation of Midwest due process rights.

[00:01:20] Speaker 04:
The one and only theory

[00:01:22] Speaker 04:
tried in Midwest 1 was whether or not Midwest violated WKYC-TV, meaning there was an expired contract and was Midwest required to continue dues checkoff until a new contract was agreed to or a valid impasse was reached.

[00:01:42] Speaker 04:
Midwest maintained that it had given notice to the union

[00:01:45] Speaker 04:
and the union waived its right to bargain and Midwest also argued that WKYC-TV would be ruled invalid by the Supreme Court and Noel Canning because the board had an invalid court.

[00:02:02] Speaker 04:
That came to pass and the board ruled after briefing was completed that it was no longer relying upon WKYC-TV.

[00:02:13] Speaker 04:
because they couldn't, because it had been ruled invalid.

[00:02:16] Speaker 04:
So at that point, the board came up with an alternative theory of midterm modification.

[00:02:22] Speaker 04:
That case, excuse me, that theory was not fully and fairly litigated, and Midwest was never on notice during the case that that was an alternative theory of the board.

[00:02:36] Speaker 09:
Also... What is your view of what that MOU is?

[00:02:40] Speaker 09:
Was it a...

[00:02:41] Speaker 09:
independent agreement between the parties?

[00:02:43] Speaker 09:
Was it a modification of the collective bargaining agreement as between these two parties?

[00:02:48] Speaker 09:
What do you consider it to have been?

[00:02:50] Speaker 04:
My understanding of the MOU was that they were taking a portion of dues out and they had changed their regular dues versus some other type of dues and I apologize because I don't have the memorandum of understanding in front of me, but that it was not anything that would supersede

[00:03:12] Speaker 04:
the expired contract in place.

[00:03:15] Speaker 09:
Well, it's specifically substituted in a new provision.

[00:03:19] Speaker 09:
It says that we're taking out the box that is in the CBA, or the paragraph in the CBA, and replaces it with new language.

[00:03:28] Speaker 04:
It does say that, but it was also never litigated during the trial.

[00:03:33] Speaker 09:
Right.

[00:03:33] Speaker 09:
So I'm just asking you what your position is, because it says you're going to replace the current language

[00:03:40] Speaker 09:
about checkoffs from the CBA with new language.

[00:03:43] Speaker 09:
So I'm just again trying to understand.

[00:03:46] Speaker 09:
This is separate and apart from your point, just to understand what this document is.

[00:03:54] Speaker 09:
Do you understand it to be an independent agreement?

[00:03:59] Speaker 09:
It doesn't have anything to do with your points about the process.

[00:04:02] Speaker 09:
Reserving all of those, an independent agreement or an amendment of the CBA?

[00:04:09] Speaker 04:
My understanding was that it was an amendment of the CBA, not an agreement in and of itself.

[00:04:15] Speaker 09:
And so when the CBA expired, this expired with it?

[00:04:18] Speaker 04:
Correct.

[00:04:21] Speaker 04:
The next issue in Midwest One was Mr. Brown's reduction of hours in June, excuse me, June, July, August of 2008.

[00:04:34] Speaker 04:
The board maintains that Mr. Brown's hours were reduced in June, July and August because of a threat he made in May to file a grievance because of an actual grievance he filed on July 22nd, because of an actual grievance he filed on August 1st and another grievance on August 8th.

[00:04:56] Speaker 04:
But if you look at Mr. Brown's hours,

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May was one of his, excuse me, May was his second highest month of the year.

[00:05:05] Speaker 04:
So the board is saying he discriminated against Mr. Brown because he threatened to file a grievance on May 9th.

[00:05:13] Speaker 04:
Yet after that date, he worked, I believe it was nine more days or seven more days for a total of 61 hours, more than half of the hours he worked in May.

[00:05:24] Speaker 04:
or admittedly his hours are down in June, July, and August.

[00:05:28] Speaker 04:
The record evidence shows that.

[00:05:30] Speaker 04:
But if you look into the gate log records.

[00:05:32] Speaker 09:
Is June, July, and August the busiest time of year?

[00:05:35] Speaker 04:
Summer is generally the busiest time of year.

[00:05:37] Speaker 09:
We see generally.

[00:05:38] Speaker 09:
Was there something unusual about that year or was it

[00:05:41] Speaker 04:
Well, there was an economic downturn in that year.

[00:05:44] Speaker 04:
Part of the issue in that first case was whether or not we were hiring enough people in April and May, and due to the economic downturn in 2008, we weren't hiring as many people as we normally did, and we won that issue.

[00:05:59] Speaker 04:
I believe there was evidence about how many ships came in as opposed to the years prior, and it was significantly reduced.

[00:06:10] Speaker 09:
And also, if you look at the record, of the 91 days... Did that record show that all other employees of his equivalent seniority and position on the employment list also had hours reduced?

[00:06:24] Speaker 09:
Were his hours similar to what everyone else was getting that summer?

[00:06:27] Speaker 04:
Based upon the record evidence, yes.

[00:06:29] Speaker 04:
Because if you look at the records in June, July, and August, of the 91 days,

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There was only 14 days where someone potentially below Mr. Brown was hired.

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Of the remaining days, Midwest only hired people from the skilled list, and Midwest only hired the top person from the regular list.

[00:06:51] Speaker 09:
So you're talking about how many people you hired.

[00:06:52] Speaker 09:
I'm talking about how many hours of the people that were working worked in those months.

[00:06:57] Speaker 09:
Is that in the record?

[00:06:59] Speaker 04:
The people working those hours.

[00:07:03] Speaker 04:
Are you saying we should have hired more people?

[00:07:05] Speaker 04:
Is that your question?

[00:07:05] Speaker 04:
No.

[00:07:05] Speaker 09:
My question is, so your argument is, as I understand it, yeah, his hours were down.

[00:07:10] Speaker 09:
You just can't dispute that.

[00:07:11] Speaker 09:
His hours were down in June, July, and August.

[00:07:14] Speaker 09:
But it was a rough year economically.

[00:07:18] Speaker 09:
You didn't have as much work as you normally would.

[00:07:20] Speaker 09:
That's why you weren't hiring very far down into the list.

[00:07:23] Speaker 09:
And so what I'm asking is, well, there were other people that were working in June, July, and August that were above him on the list or equivalent to his position on the list or on the skilled list.

[00:07:34] Speaker 09:
What hours were they working?

[00:07:35] Speaker 09:
Were they also working similar?

[00:07:37] Speaker 04:
No, they would have been working because they're working to get, they're being hired to get work.

[00:07:43] Speaker 04:
The work that needs to be done, they're getting hired to get it done.

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So if I'm hiring eight people from the skilled list and one person from the regular list, they're working the amount of hours necessary to get that work done.

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If they need to hire more people on the regular list,

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Otis as he was, Mr. Brown was hired and so were others below him.

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So it depended on the amount of work that came in.

[00:08:12] Speaker 06:
What do you say specifically was the error committed in deciding that issue by the board?

[00:08:20] Speaker 04:
Of his reduced hours?

[00:08:21] Speaker 04:
Yeah.

[00:08:24] Speaker 04:
What we're saying is

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The board is arguing that he threatened to file a grievance in May, so we didn't hire him in June, July, and August.

[00:08:36] Speaker 04:
And what we're saying is, quite frankly, that doesn't make sense.

[00:08:40] Speaker 06:
But are you saying that there was not evidence from which they could have made that conclusion?

[00:08:44] Speaker 06:
So we don't care if it makes sense or not, as long as it isn't arbitrary, capricious, and there's substantial evidence.

[00:08:51] Speaker 04:
If you look at the record evidence, there's only 14 days out of 91.

[00:08:55] Speaker 04:
14 days out of 91 that Otis potentially was passed up.

[00:09:00] Speaker 06:
So what you're saying is that there's not substantial evidence to support the board's conclusion?

[00:09:04] Speaker 06:
Correct.

[00:09:05] Speaker 06:
Correct.

[00:09:05] Speaker 06:
And we don't have to decide whether they're right or wrong.

[00:09:08] Speaker 06:
We just have to know that is there's substantial evidence.

[00:09:10] Speaker 06:
Correct.

[00:09:19] Speaker 04:
The last issue in Midwest 1 that I want to discuss was the issue of latches.

[00:09:26] Speaker 04:
ALJ Charisomey admitted in his decision that Midwest was prejudiced because it had lost two key witnesses.

[00:09:36] Speaker 04:
One of those witnesses, Mr. Stoller, was part of the hiring process in 2008.

[00:09:42] Speaker 04:
He also would have been a key witness when Mr. Brown, the incident that occurred in November when the

[00:09:54] Speaker 04:
board argue that we once again discriminated against Mr. Brown in November based upon grievances that he filed in the summit.

[00:10:02] Speaker 04:
Mr. Stoller was not available to corroborate Mr. Leach's testimony.

[00:10:09] Speaker 09:
But Mr. Moody was.

[00:10:10] Speaker 09:
He was a participant to the same conversation, confirmed Mr. Stoller's words.

[00:10:16] Speaker 09:
So how was it prejudicial not to have Stoller there when you had Moody there?

[00:10:22] Speaker 04:
Mr. Stoller didn't make any remarks that I'm aware of.

[00:10:27] Speaker 09:
Moody came in and agreed with the statement.

[00:10:29] Speaker 04:
No, this was, I'm talking about November now.

[00:10:33] Speaker 04:
Oh, okay.

[00:10:34] Speaker 04:
Okay, so in November is when Mr. Brown was on light duty and Mr. Brown argued that he worked the day before and he was not hired the next day and it was discriminatory that he wasn't hired and the board argued that Midwest reason was pretext.

[00:10:52] Speaker 04:
The board argued that Terry Leach instructed Mr. Brown that he couldn't hire him because he talked to Mr. Brown's doctor and the doctor said his injury was more serious than he led on to believe.

[00:11:08] Speaker 08:
That was false.

[00:11:09] Speaker 04:
Correct.

[00:11:10] Speaker 04:
The board said that that was pretext.

[00:11:12] Speaker 04:
Mr. Leach denied making that statement.

[00:11:14] Speaker 04:
Mr. Stahler was present.

[00:11:16] Speaker 04:
He was not able to corroborate Mr. Leach's testimony.

[00:11:21] Speaker 04:
And then the board uses that animus finding in two other cases.

[00:11:26] Speaker 04:
So again, my understanding is there is no absolute bar on latches.

[00:11:34] Speaker 04:
The board has not come out and said, we will never consider latches.

[00:11:37] Speaker 04:
Did you raise it on remand?

[00:11:39] Speaker 04:
We did not raise it on remand.

[00:11:40] Speaker 05:
Well, then it's forfeit.

[00:11:42] Speaker 04:
It is not forfeited, Your Honor.

[00:11:44] Speaker 04:
They asked us to file a position statement.

[00:11:48] Speaker 04:
It was not mandatory that we file a position statement.

[00:11:51] Speaker 04:
No one said if we do not file a position statement, we would have waived any arguments.

[00:11:57] Speaker 04:
This court did not vacate our arguments.

[00:11:59] Speaker 04:
This court vacated the board's decision.

[00:12:02] Speaker 04:
Which means it's a clean slate.

[00:12:08] Speaker 04:
Again, the board did not mandate that people file a position statement.

[00:12:14] Speaker 04:
So under that theory, had Midwest not filed a position statement, we would have waived all arguments.

[00:12:22] Speaker 09:
Did you file a position statement?

[00:12:23] Speaker 04:
We did.

[00:12:24] Speaker 09:
And what did you raise in that one?

[00:12:26] Speaker 09:
Did you raise brand new stuff or did you raise arguments you had raised before?

[00:12:29] Speaker 04:
I believe we raised arguments that we had raised before.

[00:12:32] Speaker 09:
So is the selective omission relevant?

[00:12:35] Speaker 04:
I don't believe so, Your Honor.

[00:12:37] Speaker 09:
What is the point of raising some things that you raised before but not others?

[00:12:42] Speaker 04:
Your Honor, I can't answer that question.

[00:12:51] Speaker 04:
In Midwest II, the main issue was Mr. Brown's discharge as well as the aluminum calcium transfer.

[00:13:02] Speaker 04:
Again, the board ruled that Otis Brown was discriminately treated because he was fired on a first offense as opposed to others who were given warnings on a first offense for equipment damage, and that's simply not accurate.

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One other person had been terminated for damaging company equipment and or company property, Mr. Victorian Sr.

[00:13:27] Speaker 04:
Mr. Victorian Sr.

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had three incidents in a 19 and a half month period and on that third incident he was terminated.

[00:13:36] Speaker 04:
Mr. Brown had three incidents in a 14 and a half month period and he was terminated on that third incident.

[00:13:43] Speaker 04:
The board doesn't recognize the other

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Disciplines issued to Mr. Brown in 2012.

[00:13:50] Speaker 09:
Is there any question as to Mr. Victorian's responsibility for the accidents that he committed in that time period?

[00:13:58] Speaker 04:
Was there any question as to his responsibility?

[00:14:00] Speaker 04:
Yeah.

[00:14:00] Speaker 04:
He didn't bring that up?

[00:14:01] Speaker 04:
No.

[00:14:02] Speaker 09:
No.

[00:14:03] Speaker 09:
He just drove right into the pole and nearly knocked a roof down.

[00:14:07] Speaker 04:
The rule says we don't have to prove whether or not the damage was intentional or not.

[00:14:12] Speaker 09:
No, no, no.

[00:14:12] Speaker 09:
I'm just asking the question.

[00:14:13] Speaker 09:
So in this case,

[00:14:16] Speaker 09:
There ended up being a substantial question about whether Mr. Brown was responsible at all.

[00:14:20] Speaker 09:
So saying it was the third incident in the time period really doesn't grapple with the central problem, which is pressuring the preliminary import to include a statement about liability, which preliminary imports aren't supposed to do because they're preliminary, and then ignoring the final report, which actually showed a flaw in the machinery.

[00:14:40] Speaker 04:
First, there was no evidence whatsoever by the board that said anyone's pressured

[00:14:46] Speaker 04:
into putting anything in a report.

[00:14:48] Speaker 09:
Is he asked to put a statement in a report that had never been asked before?

[00:14:51] Speaker 09:
Are you disagreeing with the board's finding on that?

[00:14:53] Speaker 04:
I'm disagreeing with the fact that someone from management instructed Midwest, excuse me, instructed Mr. Jones, the maintenance person, to instruct the RICO technician to put that in there.

[00:15:06] Speaker 04:
I'm also, if you, again, the RICO technician said he didn't put anything in there that wasn't true.

[00:15:14] Speaker 04:
So yes, at his initial report, there was nothing that he saw that led him to believe it was anything other than the operator here.

[00:15:23] Speaker 09:
But you've got to agree, the final report was quite different.

[00:15:26] Speaker 09:
The final report was different, but the final report also... Well, why would any reasonable company take the final report

[00:15:30] Speaker 09:
into its decision-making on termination.

[00:15:33] Speaker 09:
Maybe it wasn't this guy's fault at all, but that wasn't considered.

[00:15:36] Speaker 04:
Mr. Groeg, in his final report and on testimony, nothing in that changed his opinion that Mr. Brown knew or should have known the damage he was causing to that equipment.

[00:15:45] Speaker 09:
What evidence was there?

[00:15:47] Speaker 04:
What evidence was there?

[00:15:48] Speaker 09:
I mean, that's what Groeg says in testimony.

[00:15:51] Speaker 09:
I'm saying at the time, the company, not at testimony that happens years later, but at the time the company made its decision,

[00:15:59] Speaker 09:
Or it would have made its decision had it done a reasonable investigation.

[00:16:02] Speaker 09:
Ask Mr. Brown.

[00:16:04] Speaker 04:
Do you feel anything?

[00:16:06] Speaker 09:
There's no statement for Mr. Brown to take a statement?

[00:16:08] Speaker 04:
Mr. Brown decided not to issue a statement.

[00:16:09] Speaker 04:
Mr. Brown was given four days to issue a statement.

[00:16:11] Speaker 04:
And the evidence is he was given time to issue a statement and didn't do so.

[00:16:15] Speaker 04:
Correct.

[00:16:16] Speaker 04:
And the final report, did it come in before or after the termination?

[00:16:20] Speaker 04:
My understanding is the final report, based on the date, would have come in after the termination.

[00:16:25] Speaker 04:
Again, Mr. Leach.

[00:16:27] Speaker 09:
How long was it between the preliminary and final report?

[00:16:32] Speaker 04:
I don't know.

[00:16:33] Speaker 04:
Two to three weeks maybe.

[00:16:36] Speaker 09:
And is the company in the habit of firing people before it has a final report on accidents?

[00:16:42] Speaker 04:
The company believed it had a message.

[00:16:43] Speaker 09:
Where someone denies responsibility?

[00:16:47] Speaker 09:
I'm just asking what the company's practice and policy is in this area.

[00:16:51] Speaker 04:
Lots of people deny responsibility that they've done something wrong.

[00:16:54] Speaker 04:
Mr. Leach is an experienced unloader driver, certified by the Hard Department of Transportation.

[00:17:00] Speaker 09:
I didn't ask you the facts.

[00:17:02] Speaker 09:
I asked you if that's what the company does.

[00:17:04] Speaker 09:
Maybe it just fires people as soon as they get a preliminary report.

[00:17:08] Speaker 09:
I'm just asking what they normally do.

[00:17:10] Speaker 04:
There was a five-day window between the incident and when Mr. Brown was terminated.

[00:17:15] Speaker 04:
Mr. Leach spoke with Mr. Brown.

[00:17:17] Speaker 04:
Mr. Leach spoke with Mr. Ivey.

[00:17:18] Speaker 09:
I'm going to try one more time because you get preliminary reports and you get final reports.

[00:17:23] Speaker 09:
Correct.

[00:17:24] Speaker 09:
Okay.

[00:17:24] Speaker 09:
Is the company usually making its termination or discipline decisions based just on a preliminary report or does it usually wait for the final report?

[00:17:31] Speaker 04:
This is the first time the company asked RICO

[00:17:34] Speaker 04:
to do a report so it would not be accused of discriminating against Mr. Brown.

[00:17:40] Speaker 04:
The company usually does its own investigation.

[00:17:44] Speaker 09:
Being of Mr. Brown's... Does it usually complete its investigation before it makes disciplinary decisions?

[00:17:50] Speaker 04:
Does it usually complete its investigation?

[00:17:52] Speaker 04:
Based upon the information that I have, once they've spoken to the witnesses,

[00:18:03] Speaker 04:
They will make a determination on whether or not someone should be fired.

[00:18:05] Speaker 09:
Is that a complete investigation?

[00:18:08] Speaker 04:
That would be a complete investigation.

[00:18:09] Speaker 09:
So you usually wait for a complete investigation.

[00:18:11] Speaker 04:
Correct.

[00:18:11] Speaker 04:
And they spoke with Mr. Brown.

[00:18:13] Speaker 04:
And they spoke with Mr. Lyby.

[00:18:16] Speaker 05:
I'm a little confused.

[00:18:16] Speaker 05:
What does it mean to discharge Brown?

[00:18:22] Speaker 05:
He only worked in the briefs we get.

[00:18:27] Speaker 05:
The setup is that somebody is not an employee unless they're hired on a day-to-day basis.

[00:18:36] Speaker 05:
They have to show up and then they get hired?

[00:18:38] Speaker 05:
Correct.

[00:18:39] Speaker 05:
Okay, so what does it mean that he was discharged?

[00:18:42] Speaker 05:
It means they just don't hire him?

[00:18:44] Speaker 04:
Is that it?

[00:18:46] Speaker 04:
If they get discharged, they lose their privilege to show up to the front.

[00:18:52] Speaker 04:
This is a gated facility.

[00:18:55] Speaker 04:
So they lose their privilege to enter the facility.

[00:18:59] Speaker 04:
So he would no longer be... His name would be given by security.

[00:19:03] Speaker 04:
He's not on the lid anymore.

[00:19:04] Speaker 06:
He's not on the lid anymore.

[00:19:06] Speaker 05:
Correct, correct.

[00:19:06] Speaker 05:
He's crossed off the regular list, right?

[00:19:09] Speaker 05:
Yes.

[00:19:10] Speaker 09:
Or the casual, he just can't show up.

[00:19:12] Speaker 04:
Correct.

[00:19:15] Speaker 04:
Okay, now with respect to the aluminum and calcium, there is a...

[00:19:23] Speaker 04:
Proviso in the board's 10K decision.

[00:19:27] Speaker 04:
And that's what the parties are arguing over.

[00:19:30] Speaker 04:
So everyone understands that the facility is divided into half by a road going down the middle.

[00:19:39] Speaker 04:
On the wet side, the union, ILA Local 1982, loads and unloads the barges, stores, things, and warehouses on the wet side.

[00:19:49] Speaker 04:
On the dry side, the Teamsters,

[00:19:52] Speaker 04:
unload, transport cargo, store cargo in the warehouses.

[00:19:58] Speaker 04:
At the time of the 10K hearing, the ILA Local 1982 was attempting to force Teamsters off of the property altogether.

[00:20:07] Speaker 04:
They were seeking to take over their work on the dry side.

[00:20:10] Speaker 04:
At the time of the hearing, we amended the notice and the entire facility was up for grabs as far as who does what work.

[00:20:23] Speaker 04:
and the board kept things as they were as far as the dry side and the wet side, but did say for items that, for material that is to be stored on the wet and on the dry side, the Teamsters are permitted to enter the wet side and transport the cargo back because they have done this work in the past.

[00:20:47] Speaker 04:
Now they've done this work in the past two different ways, via transfer truck,

[00:20:52] Speaker 04:
and via forklifts.

[00:20:55] Speaker 04:
So on items, be it aluminum.

[00:20:59] Speaker 09:
Did they use forklifts at the time of the 10K hearing?

[00:21:02] Speaker 09:
Were those an issue in the 10K hearing, or was that a subsequent development?

[00:21:06] Speaker 04:
The 10K hearing was dealt with past practice.

[00:21:09] Speaker 04:
So there was testimony of how was this work done in the past, how was it currently, and how was it currently being done.

[00:21:19] Speaker 04:
It was currently being done by a third-party transport truck.

[00:21:22] Speaker 04:
So the ILA had in the past been done by forklift?

[00:21:27] Speaker 04:
It had in the past been done by forklift and by transfer truck.

[00:21:33] Speaker 04:
So Midwest read that to mean that the Teamsters could enter the west side, stick their forks in the aluminum, and transport the cargo back without having the inefficiency of waiting for ILA to load a truck, drive the truck over, and unload the truck.

[00:21:50] Speaker 04:
It's unnecessary work.

[00:21:52] Speaker 05:
Now, with respect.

[00:21:55] Speaker 05:
On page 40 of your brief, you've got the determination of dispute.

[00:22:01] Speaker 05:
But the introduction to that is that the Teamsters, the people represented by the Teamsters Union, is being awarded the work that was being performed by the trucking company.

[00:22:16] Speaker 05:
Correct.

[00:22:17] Speaker 05:
The trucking company did not use forklifts to transport

[00:22:21] Speaker 05:
Correct.

[00:22:22] Speaker 04:
And if you go, correct.

[00:22:24] Speaker 04:
Correct.

[00:22:25] Speaker 05:
So if the award is to the teamsters to perform the work previously done by the trucking company, that says nothing about transporting through a forklift?

[00:22:39] Speaker 04:
It also doesn't say that they can't transport it with a forklift.

[00:22:42] Speaker 04:
If you go to the proviso lower, lower in the dispute where it says,

[00:22:50] Speaker 04:
The Teamsters are permitted to enter the wet side and transport cargo back that is to be stored.

[00:22:59] Speaker 04:
And again, during the 10K hearing, one of the things that was discussed was efficiency.

[00:23:03] Speaker 04:
We're trying to get rid of having to use a truck when we don't need one.

[00:23:09] Speaker 09:
The loading was awarded to the local union.

[00:23:13] Speaker 09:
Correct.

[00:23:14] Speaker 04:
And if transfer trucks are used, just as in calcium, they still load.

[00:23:18] Speaker 09:
The loading, right.

[00:23:20] Speaker 09:
But the forklift is eliminating that.

[00:23:22] Speaker 09:
It has them doing the loading.

[00:23:23] Speaker 09:
They load and transport.

[00:23:24] Speaker 09:
That's what the forklift does.

[00:23:25] Speaker 04:
It self-loads.

[00:23:27] Speaker 04:
The forklift is just transporting.

[00:23:29] Speaker 04:
I mean, you're literally sticking your fork in and bringing it back.

[00:23:31] Speaker 04:
You're not loading it.

[00:23:32] Speaker 09:
It's sticking the fork, loading it on the forklift.

[00:23:35] Speaker 04:
Well, it's different than loading it on a truck.

[00:23:37] Speaker 09:
I get it's different, but it's loading, right?

[00:23:40] Speaker 04:
I don't believe so.

[00:23:41] Speaker 06:
I questioned that.

[00:23:42] Speaker 06:
I'm sorry to interrupt, but the forklift just picks it up and takes it where it's going.

[00:23:47] Speaker 06:
It doesn't load it on something.

[00:23:48] Speaker 09:
I get that, but you're loading it onto the forklift.

[00:23:51] Speaker 06:
No, you take the forklift and you pick it up with the forklift.

[00:23:54] Speaker 09:
That's the point.

[00:23:55] Speaker 06:
There's not an act of loading like you have with a truck where your forklift or your stevedoor actually is picking something up and loading it on another item, the forklift.

[00:24:04] Speaker 06:
My dad used to be a forklift driver, by the way.

[00:24:07] Speaker 06:
But anyhow, the forklift just simply pokes into the load and lifts it up.

[00:24:12] Speaker 06:
It doesn't load it onto anything.

[00:24:13] Speaker 06:
It takes you where it's going.

[00:24:14] Speaker 09:
The driver loads the forklift and then takes it somewhere.

[00:24:18] Speaker 04:
What form is the aluminum in?

[00:24:20] Speaker 04:
The aluminum are in, they're called sows.

[00:24:23] Speaker 04:
And they are probably from here to here.

[00:24:29] Speaker 04:
to here?

[00:24:29] Speaker 04:
Are they on pallets?

[00:24:30] Speaker 04:
They're not on pallets.

[00:24:31] Speaker 04:
They're just stacked on one top of each other.

[00:24:33] Speaker 04:
You just stick the fork in the bottom one, transport to the other side.

[00:24:37] Speaker 06:
So you don't even have a pallet on the bottom?

[00:24:39] Speaker 06:
Excuse me?

[00:24:40] Speaker 06:
You don't even have a pallet on the bottom?

[00:24:42] Speaker 06:
No.

[00:24:43] Speaker 04:
And then the last item I want to discuss is the calcium.

[00:24:47] Speaker 04:
So there was another issue with respect to Midwest, excuse me, the ILA local 1982 stevedores unloaded the barge,

[00:24:59] Speaker 04:
of calcium, loaded it onto a transfer truck.

[00:25:04] Speaker 04:
That transfer truck transported it to the dry side and the teamsters unloaded it and sorted it in warehouses.

[00:25:12] Speaker 04:
So in that instance Midwest is doing precisely what the board argues it should be doing and we still violated the act.

[00:25:23] Speaker 04:
So it's got to be one thing or the other.

[00:25:29] Speaker 04:
And I am in my rebuttal time, so if there are no more questions, I will reserve the remaining time.

[00:25:34] Speaker 09:
Did you want to raise anything about Midwest 3?

[00:25:38] Speaker 04:
I would love to, but I'm running very low on time.

[00:25:42] Speaker 09:
We'll give you some time for rebuttal if you have time.

[00:25:44] Speaker 04:
OK.

[00:25:44] Speaker 04:
On Midwest 3.

[00:25:45] Speaker 09:
Make it efficient.

[00:25:46] Speaker 04:
Correct.

[00:25:46] Speaker 04:
On Midwest 3, the main point is no one argues that Mr. Canales has qualified to be on the skilled list.

[00:25:54] Speaker 04:
No one argues what?

[00:25:55] Speaker 04:
No one argues that Mr Canales has the necessary qualifications to be on the skill list.

[00:26:00] Speaker 04:
He's good.

[00:26:01] Speaker 04:
He's been he's been added to the skill list.

[00:26:03] Speaker 04:
The issue is the issue is, is Mr Russell qualified to be on the skill list?

[00:26:08] Speaker 04:
Is Mr Victorian Jr qualified to be on the skill list?

[00:26:11] Speaker 04:
And then is another Mr Victorian Jr qualified to be on the skill list?

[00:26:17] Speaker 04:
Midwest maintains that Joe Victoria Jr.

[00:26:19] Speaker 04:
is qualified to be on the skill list.

[00:26:21] Speaker 04:
He meets the necessary qualifications.

[00:26:23] Speaker 04:
He is a hatch leader, he is a crane operator, he is a signalman, and he is a power operator.

[00:26:30] Speaker 04:
Now there's issues to whether or not he is actually a signalman because it is not listed on the order of call as him being a signalman.

[00:26:37] Speaker 04:
But if you look and if you read the briefs, you can't be a crane operator unless you're a signalman.

[00:26:46] Speaker 04:
Mr Victorian Junior is a crane operator.

[00:26:49] Speaker 04:
He is qualified as a crane operator and no one disputes that.

[00:26:53] Speaker 04:
He is a signalman.

[00:26:55] Speaker 04:
Mr Fred Victorian Junior and Mr Russell are not qualified signalman.

[00:27:02] Speaker 04:
They took the test.

[00:27:04] Speaker 04:
They failed the test and per OSHA, once the company

[00:27:11] Speaker 04:
has knowledge that someone is not capable or qualified to perform that work.

[00:27:15] Speaker 04:
They are no longer qualified to perform that work until they pass the test.

[00:27:19] Speaker 04:
That is why they were not added to the skill test.

[00:27:24] Speaker 04:
And as far as discrimination with Mr. Victorian goes, the company has consistently stated since 2012 that he is not a qualified student because he did not pass the test.

[00:27:37] Speaker 06:
I'm not sure that there is an answer to this, but it looked to me like, looking at the briefs and records, that you don't have an awful lot of people who can be king of crane operators.

[00:27:47] Speaker 06:
Is there work that's just not getting done, or are you... You have enough people on that skill list to do this job.

[00:27:54] Speaker 04:
The company is in desperate need of crane operators.

[00:27:59] Speaker 04:
Okay.

[00:27:59] Speaker 04:
And still are.

[00:28:01] Speaker 06:
So I guess the short answer is you must be paying a lot of overtime, or...

[00:28:06] Speaker 06:
I can't answer that.

[00:28:07] Speaker 04:
I just know that the company desperately needs crane operators.

[00:28:12] Speaker 04:
And if there are no other questions, I'll reserve the remaining time for rebuttal.

[00:28:15] Speaker 09:
All right, thank you.

[00:28:16] Speaker 04:
Thank you.

[00:28:18] Speaker 06:
Excuse me for jumping in there, I'm sorry.

[00:28:23] Speaker 06:
You're not logged in if you're just picking up.

[00:28:26] Speaker 06:
You never were a construction worker, are you?

[00:28:30] Speaker 03:
May it please the court?

[00:28:31] Speaker 03:
My name is Milakshmi Rajapaksa.

[00:28:33] Speaker 03:
I'm counsel for the National Labor Relations Board.

[00:28:36] Speaker 03:
On the first case in the chronological series of Midwest Terminals cases that are before the court today, with me from the board and seated at council table are Heather Beard and Rebecca Johnston, who will argue respectively Midwest 2 and Midwest 3.

[00:28:54] Speaker 03:
I'm here to address Midwest 1.

[00:28:56] Speaker 03:
I understand that Midwest's Council has only addressed a few of the unfair labor practices that are at issue in this case.

[00:29:05] Speaker 03:
I would just briefly like to remind the court that there were seven unfair labor practice findings the board made in Midwest One.

[00:29:13] Speaker 03:
The company forfeited any challenge to four of the violations by failing to argue them in the opening brief.

[00:29:22] Speaker 03:
And so what we're left with are two discrimination findings.

[00:29:26] Speaker 03:
and one finding of an unlawful cessation of dues check-off, which is deduction of union dues from an employee's paychecks and remittance of the dues to the union.

[00:29:39] Speaker 03:
So taking up the issue of dues check-off first, since that is what my opposing counsel chose to do,

[00:29:49] Speaker 03:
I'll just say the face of the document, Judge Millett, is quite clear.

[00:29:54] Speaker 03:
The parties in 2012, and this is at page 890 of the Joint Appendix, the parties agreed that the current language on checkoff will be replaced with the proposed language, and then the proposed language is set forth.

[00:30:12] Speaker 09:
So it's an amendment to the collective bargaining agreement.

[00:30:15] Speaker 03:
It wasn't characterized as an amendment to the master agreement that was in place.

[00:30:21] Speaker 09:
The current language will be replaced with this language.

[00:30:25] Speaker 09:
That sounds to me like an amendment of the collective bargaining agreement, not a freestanding agreement.

[00:30:32] Speaker 03:
Well, the board's position is that this is a freestanding agreement.

[00:30:37] Speaker 09:
How can that be?

[00:30:38] Speaker 09:
The current language, and then it produces a current language, will be replaced with

[00:30:43] Speaker 09:
the new language.

[00:30:45] Speaker 09:
So it's building into a pre-existing.

[00:30:47] Speaker 09:
There's some bigger document, the collective bargaining agreement, that this is substituting new language in for it.

[00:30:53] Speaker 09:
That's the natural reading of this.

[00:30:55] Speaker 03:
Right, that's true, Your Honor.

[00:30:57] Speaker 03:
I guess what I'm saying, though, is that this

[00:30:59] Speaker 03:
This agreement also had a separate durational clause in it.

[00:31:04] Speaker 03:
Where does it say that?

[00:31:05] Speaker 03:
And so it says, it says, until I allay local 1982 and Midwest terminals ratify a new local agreement.

[00:31:13] Speaker 03:
So that is a, this agreement is freestanding in the sense that it is not subject to the durational provision in the master agreement.

[00:31:20] Speaker 09:
The master agreement was... It just says, until we get a new bargain agreement, the current bargain agreement's language

[00:31:28] Speaker 09:
Checkoff number four will be replaced with checkoff number four.

[00:31:32] Speaker 09:
It doesn't actually put into the collective bargaining agreement language about this particular, this one topic will continue after the rest of the collective bargaining agreement expires.

[00:31:42] Speaker 03:
Your Honor, the board's reading of this is that it does, it does continue, this agreement continues in effect by its plain terms until a new local agreement is ratified.

[00:31:53] Speaker 03:
And so at the time when Midwest ceased checking off union dues,

[00:31:57] Speaker 03:
There was no new successor agreement that had been executed, so by the plain terms of this MOU Midwest was obligated to continue checking off dues and it very simply ceased doing that.

[00:32:10] Speaker 03:
So the violation

[00:32:12] Speaker 03:
itself is quite clear, and I don't think Midwest's counsel today even has a coherent explanation as to how this is not.

[00:32:18] Speaker 06:
Is there in the complaint against which they were defending language that says that this was the nature of the violation?

[00:32:26] Speaker 06:
As I understand a petitioner's position, it says that the complaint did not put them on, it's a due process problem in other words, that they were trying to do something other than what they were charged with.

[00:32:39] Speaker 03:
Right, that is Midwest's argument.

[00:32:42] Speaker 06:
Yeah, and why aren't they correct?

[00:32:45] Speaker 03:
Well, they're not correct because under this court's precedent and under Pergament, which is one of the cases, it's an out-of-circuit case, but it's the main case in this area, the board does not have to exhaustively plead every theory that could possibly apply.

[00:32:59] Speaker 06:
Well, they may not have to exhaustively plead every theory that could possibly apply, but don't they have to plead the theory upon which they found up winning?

[00:33:08] Speaker 06:
Yes.

[00:33:09] Speaker 06:
You can't defend against something you're not charged with.

[00:33:13] Speaker 06:
Why isn't there a due process problem?

[00:33:14] Speaker 03:
Well, the board broadly did plead a refusal to bargain.

[00:33:18] Speaker 03:
And it pleaded the underlying facts that formed the basis for that allegation.

[00:33:23] Speaker 03:
And that is all that the law requires in the board's view.

[00:33:26] Speaker 03:
And the board agreed.

[00:33:27] Speaker 09:
No, hang on, hang on.

[00:33:28] Speaker 09:
Because the legal issue was whether, if you're proceeding under a collective bargain agreement, if there had never been an MOU, then there was this legal argument about whether they check off

[00:33:40] Speaker 09:
obligation continued once the collective bargaining agreement expired.

[00:33:45] Speaker 09:
And so by pleading that theory, that's very different from saying whatever that legal world is, there's a whole other contractual obligation that required you to depart from that existing Bethlehem Steel precedent and

[00:34:07] Speaker 09:
keep you alone had to keep paying dues.

[00:34:10] Speaker 09:
You had agreed to keep paying dues even after the collective bargaining agreement expired.

[00:34:16] Speaker 09:
They had no notice that the memorandum of understanding was an issue, that that was the board's reading of this document, or any opportunity to fight about those facts and those legal arguments.

[00:34:32] Speaker 09:
Nor did you.

[00:34:33] Speaker 03:
Well, respectfully, Your Honor, the Board disagrees with that reading of the record.

[00:34:38] Speaker 03:
Because on this record, there's not only the broad terms of the complaint, which did set forth the refusal to bargain and the basis for that allegation.

[00:34:46] Speaker 09:
It also... Does the complaint mention the memorandum of understanding?

[00:34:50] Speaker 03:
No, but the complaint didn't have to mention the evidence in particular.

[00:34:55] Speaker 03:
And at the hearing, Midwest actually was put on notice.

[00:34:59] Speaker 03:
Does it have to reference the source of the legal obligation?

[00:35:01] Speaker 03:
Well, the complaint didn't mention anything.

[00:35:09] Speaker 03:
Quite frankly, Section 8D of the Act is what sets forth the scope of the duty to bargain.

[00:35:15] Speaker 03:
The complaint didn't say anything about Section 8D, and yet Section 8D is in play regardless of whether you have a unilateral change or a contract modification.

[00:35:24] Speaker 03:
And so, by your honor's suggested standard, the complaint wouldn't be complete even as to the unilateral change.

[00:35:33] Speaker 03:
But in this case, if I may return to the issue of notice, Midwest had not only the terms of the complaint, but they also had a statement from counsel, albeit at the very beginning of the hearing, that Midwest ceased to check off at a time when it was contractually bound as well as legally bound.

[00:35:50] Speaker 03:
to continue checking off dues.

[00:35:53] Speaker 03:
And then there was also the fact that this MOU came into evidence over no objection.

[00:35:57] Speaker 09:
Did the General Counsel think it was litigating this issue before the Board came up with it?

[00:36:02] Speaker 09:
In all honesty, did the General Counsel's Office believe it was asserting this issue and litigating this issue?

[00:36:08] Speaker 09:
Or were we just going back in time and trying to find something that kind of suggests that it was in play?

[00:36:13] Speaker 03:
Yes, I understand, Your Honor, that that's Midwest speculation.

[00:36:16] Speaker 03:
There is some speculation about the board's motives.

[00:36:19] Speaker 09:
But regardless of the- No, no, I'm not speculating about the board's motives.

[00:36:22] Speaker 09:
I'm asking when the general counsel prosecuted this case before the ALJ and again before the board, can you tell me that the general counsel was consciously litigating

[00:36:35] Speaker 09:
the theory and explicitly litigating the theory that the memorandum of understanding itself distinctly obligated them to keep paying these checkoffs?

[00:36:45] Speaker 03:
It was litigated in a slightly different way.

[00:36:48] Speaker 03:
It did enter into the litigation, Your Honor, and I'll explain how.

[00:36:53] Speaker 03:
Midwest defended against the unilateral change allegation by arguing that the union had waived its right to bargaining over this issue.

[00:37:02] Speaker 03:
And in responding to that argument, the general counsel did refer to this 2012 MOU.

[00:37:09] Speaker 03:
And the judge, in explaining why waiver was not a viable defense, referred to the MOU and said, look at this MOU.

[00:37:18] Speaker 03:
The union not only did not waive bargaining,

[00:37:22] Speaker 03:
they believed they affirmatively had closed this issue and had essentially locked in an agreement over due's checkoff.

[00:37:30] Speaker 03:
And so there could not possibly have been a waiver.

[00:37:32] Speaker 03:
And so yes, Your Honor, I will acknowledge that it wasn't as if the general counsel

[00:37:43] Speaker 03:
you know, amended the complaint and said, ah, yes, contract modification is another theory.

[00:37:50] Speaker 03:
But it was presented at the hearing in connection with the issue of waiver.

[00:37:55] Speaker 09:
And then the judge actually made a... It was presented, the memorandum of understanding was introduced into the record.

[00:38:03] Speaker 09:
Or do you mean it, as in this theory of liability, was presented?

[00:38:08] Speaker 09:
Those are two different things.

[00:38:10] Speaker 03:
Right.

[00:38:12] Speaker 03:
The memorandum of understanding was introduced into the record.

[00:38:17] Speaker 03:
And this theory was not, perhaps, expressly litigated.

[00:38:23] Speaker 03:
But the judge made several findings about the import of this MOU and specifically referenced Section 18.

[00:38:30] Speaker 06:
Well, that might be your problem.

[00:38:31] Speaker 06:
The judge was finding things that were not litigated.

[00:38:37] Speaker 06:
I don't see how the judge making findings saves you anything at all.

[00:38:41] Speaker 06:
Our question is whether the, first the judge and then the board, has the power, consistent with due process, to make findings of an AULP that isn't charged in the complaint.

[00:38:57] Speaker 06:
Or an amended complaint, whether you could have moved to amend the complaint.

[00:39:01] Speaker 06:
But I think that sort of underlines what the presiding judge is asking.

[00:39:05] Speaker 06:
If the general counsel thought it was litigating

[00:39:10] Speaker 06:
this issue, why didn't they move to amend the complaint to put it in there?

[00:39:14] Speaker 03:
I think the thrust of cases like Pergament and Davis Supermarkets is that you don't have to amend the complaint.

[00:39:20] Speaker 03:
There are circumstances where an issue is presented by the litigation or it's sufficiently encompassed within the complaint and at bottom... What would have been the downside to moving for an amended complaint if the GC thought this was what they were really getting?

[00:39:35] Speaker 03:
I don't know that there certainly would have been.

[00:39:38] Speaker 06:
It isn't good enough to say we don't have to.

[00:39:42] Speaker 06:
You didn't do it.

[00:39:43] Speaker 06:
And it doesn't look like the GC thought this was being litigated when the GC didn't make the second amendment.

[00:39:50] Speaker 03:
Well, I will say the general counsel in the position statement that she filed before the board on remand

[00:39:57] Speaker 03:
did endorse and agree that this is a contract modification.

[00:40:04] Speaker 03:
And so if the concern is that the general counsel has never espoused this theory, that's not true.

[00:40:10] Speaker 03:
I would just respectfully submit that.

[00:40:12] Speaker 03:
I see that my time is about to up.

[00:40:14] Speaker 05:
Before you sit down, maybe you can clear this up.

[00:40:19] Speaker 05:
As I understand it, the ALJ never

[00:40:22] Speaker 05:
made any conclusion of law about the effect of this memorandum of understanding.

[00:40:28] Speaker 05:
The ALJ's conclusions of law, which are on JA-222, said something to the effect

[00:40:36] Speaker 05:
that the violation that occurred here was the failure to continue the checkoff provision of an expired collective bargaining agreement.

[00:40:45] Speaker 08:
Correct.

[00:40:45] Speaker 05:
The MOU was not an expired collective bargaining agreement.

[00:40:52] Speaker 05:
Right.

[00:40:52] Speaker 05:
But when it gets to the board, the board drops that footnote and said, well, we don't rely on that.

[00:40:59] Speaker 05:
We don't rely on the ALJ's finding.

[00:41:02] Speaker 05:
And then the board makes a finding about the meaning of the memorandum of understanding.

[00:41:09] Speaker 05:
In between those two events, between the ALJ and the board, what kind of pleadings were filed by the general counsel and by the company?

[00:41:20] Speaker 05:
Dealing with the MOU.

[00:41:23] Speaker 03:
Right.

[00:41:24] Speaker 03:
Again, there were exceptions that were taken to the judge's decision, the findings that you were talking about.

[00:41:30] Speaker 03:
And in the exceptions in the brief that the company submitted in support of its exceptions, it did mention and acknowledge this MOU.

[00:41:42] Speaker 03:
And it simply stated that it was not applicable.

[00:41:45] Speaker 03:
But this was, again, as I mentioned to Judge Millett, it was in connection with this issue of waiver, whether this

[00:41:51] Speaker 03:
this definitively eliminates any argument of waiver.

[00:41:55] Speaker 03:
So it was of a different tenor, but the issues were actually litigated before the board, this MOU.

[00:42:03] Speaker 05:
After the company files exceptions, does the general counsel respond?

[00:42:08] Speaker 03:
Yes.

[00:42:08] Speaker 05:
And in the response to the company's exception, did the general counsel

[00:42:13] Speaker 05:
say that the memorandum of understanding was a separate collective bargaining agreement that continued regardless of the expiration of the other collective bargaining with respect to dues checkoff?

[00:42:32] Speaker 03:
I don't think so, no, Your Honor.

[00:42:34] Speaker 05:
I don't think that that was... So this was then a conclusion that the board reached on its own without argument of counsel back and forth?

[00:42:49] Speaker 03:
Well, again, Your Honor, the general counsel at other stages did mention this idea that there was a contractual commitment, and it was in connection with the issue of waiver somewhat, but it was presented.

[00:43:04] Speaker 03:
I mean, I don't think the board is saying as counsel

[00:43:07] Speaker 03:
Council has mentioned that this fully and fairly litigated standard.

[00:43:11] Speaker 03:
The board is not saying that this was fully and fairly litigated.

[00:43:15] Speaker 03:
It doesn't have to.

[00:43:16] Speaker 03:
The board thinks that this was encompassed within the complaint and it was clearly presented, both at the hearing and after the hearing.

[00:43:24] Speaker 08:
Could not argue.

[00:43:27] Speaker 03:
Well, the general counsel did argue, as I mentioned in the position statement, that this is a contract modification.

[00:43:33] Speaker 03:
I know that my time is well over, so I will close here.

[00:43:39] Speaker 03:
The board respectfully requests.

[00:43:41] Speaker 03:
Actually, sorry.

[00:43:43] Speaker 09:
I had other questions, but still back on this one.

[00:43:47] Speaker 09:
To the extent there's a legal question about exactly what this MOU is and how it was meant to work, was it freestanding?

[00:43:57] Speaker 09:
Modification, was it a modification with a distinct time limit from the rest of the collective bargaining agreement?

[00:44:03] Speaker 09:
That was never briefed or argued.

[00:44:06] Speaker 03:
Am I right?

[00:44:08] Speaker 03:
No, because, well, in the board's view, this agreement on its face is quite clear.

[00:44:14] Speaker 09:
I understand, but if one thought it was not so clear, that issue, and I think they don't think it reads the same way the board does, did they ever, was this issue ever briefed?

[00:44:25] Speaker 09:
Did they ever have an opportunity to brief that issue?

[00:44:27] Speaker 09:
Did you ever have an opportunity to brief that issue?

[00:44:31] Speaker 03:
Meaning in the proceedings before the board.

[00:44:33] Speaker 09:
I think she wasn't briefed as to what this thing means and how it operates.

[00:44:39] Speaker 03:
Right, I think opportunity and actual using of that opportunity are two different things.

[00:44:46] Speaker 03:
I mean, board's view is that Midwest did have an opportunity to join the terms of this specific MOU in it.

[00:44:53] Speaker 03:
It's just sat on its rise, essentially.

[00:44:57] Speaker 03:
And so the board does believe that this violation is well supported by the evidence.

[00:45:05] Speaker 09:
Does the court have other?

[00:45:10] Speaker 09:
On the Latches question, is it the board's position that even when there's prejudice, here there were two witnesses they weren't able to call as a result of the time delay.

[00:45:26] Speaker 09:
You are positioned that they were equally responsible for the time delay, or do you acknowledge that this was the practice of the federal council trying to consolidate complaints in dealing with a lot of matters?

[00:45:42] Speaker 09:
Did they contribute to the time delay at all?

[00:45:44] Speaker 03:
I'm not aware that they contributed to the delay before in terms of the prosecution phase of this proceeding.

[00:45:51] Speaker 03:
But I will just note, Your Honor, that the board's view is that this was abandoned and I would just like to mention because counsel talked about the position statement that was filed and acknowledged that it wasn't in the position statement.

[00:46:06] Speaker 03:
I will note that there were some new things in that position statement, such as the challenge to the Section 8A5 cessation of dues checkoff.

[00:46:16] Speaker 03:
That was a new argument that was made in the position statement and the due process challenge was made, and yet there was no reference to latches.

[00:46:27] Speaker 06:
Let me just get one clarification on this.

[00:46:30] Speaker 06:
Is it the board's position that Latchez cannot apply against the government?

[00:46:34] Speaker 06:
Yes.

[00:46:35] Speaker 06:
So none of the rest of it, if we buy that position, then nothing else matters on Latchez, right?

[00:46:41] Speaker 03:
That is the board's view, of course, as the board has... If we accept that view, then...

[00:46:46] Speaker 03:
Right.

[00:46:47] Speaker 03:
And I would just call the court's attention once again to Rudder-Rex, which is the Supreme Court case that the board cited, which does say that the board is not required to place the consequences of its own delay, even if inordinate, on wronged employees to the benefit of the wrongdoing employer.

[00:47:08] Speaker 03:
And so that's why it's wrong.

[00:47:09] Speaker 09:
So that begs the question.

[00:47:12] Speaker 09:
If the company isn't able to put on

[00:47:15] Speaker 09:
two of its witnesses, and there's just not alternative evidence that they could have used.

[00:47:21] Speaker 09:
It begs the question of whether there was a wrongdoing employer.

[00:47:24] Speaker 09:
So how can that make sense?

[00:47:27] Speaker 09:
And even if that latches, is your theory that the board, should there be evidentiary presumptions when the board causes delay against the board, or against the general counsel, exclusion of the general counsel's evidence, or are courts helpless to do anything to address this prejudice?

[00:47:45] Speaker 03:
Well, under controlling precedent, it doesn't seem that there, I don't think that Midwest even has cited a case placing any particular restriction.

[00:47:57] Speaker 09:
In more recent years, Supreme Court has started to hedge a little bit on the application of latches to governmental entities.

[00:48:04] Speaker 08:
Right.

[00:48:05] Speaker 09:
But I'm even asking a separate question of if there's not latches, should there be no evidentiary consequences?

[00:48:12] Speaker 09:
Because you're impairing employers

[00:48:16] Speaker 09:
Why not drag everything out until they can't put on a viable defense?

[00:48:20] Speaker 03:
Right.

[00:48:21] Speaker 03:
I will just mention, and this is also covered in the board's brief, but even assuming that latches were to apply, the board's view is that Midwest wouldn't qualify for that defense.

[00:48:32] Speaker 03:
The general counsel was diligent in processing these multiple charges, sometimes concurrently, and there were deferrals to arbitration, of which Midwest is well aware.

[00:48:40] Speaker 03:
partial settlements.

[00:48:42] Speaker 03:
There was a lot going on in this vacation.

[00:48:43] Speaker 09:
Was anything deferred to arbitration or addressed in potential settlement or mediation negotiations that pertains to the oldest charges, the ones that issue here, for which you had the greatest gap of time?

[00:48:56] Speaker 03:
Yes, Your Honor.

[00:48:57] Speaker 03:
I mean, in fact, the very first charge, which ends in 038-092, which actually encompassed the discrimination allegations against

[00:49:09] Speaker 03:
that involved Otis Brown.

[00:49:11] Speaker 03:
That charge was found partially meritorious, partially settled, partially deferred to arbitration, so that one charge is kind of a microcosm of the issue.

[00:49:22] Speaker 03:
There are, on each of these charges, there are multiple allegations that have to be investigated and processed.

[00:49:27] Speaker 09:
And they agreed to those?

[00:49:30] Speaker 09:
Because you said they weren't responsible, but now it sounds like you're saying they agreed to these different processes from the late aspects of the case.

[00:49:36] Speaker 03:
Yes.

[00:49:36] Speaker 03:
I do see your point that, yes, I mean, Midwest was well aware of certain reasons why the litigation went on as it did, and it participated.

[00:49:45] Speaker 03:
It participated in settling aspects of the charges.

[00:49:50] Speaker 03:
And so the board doesn't believe that this is a situation where the general counsel slumbered on his rights, which is kind of the classic situation when laches should apply.

[00:50:00] Speaker 03:
The other issue is prejudice.

[00:50:02] Speaker 03:
I will just say that, yes, the judge did acknowledge that Midwest may have suffered some prejudice.

[00:50:08] Speaker 09:
The judge did not say... The ALJ was quite troubled by this.

[00:50:11] Speaker 03:
Right, but the ALJ didn't talk about the degree of prejudice, and I will just submit to you... Because the ALJ felt his hands were tied.

[00:50:22] Speaker 03:
Well, that may be so, but he just accepted at face value the fact that two witnesses were unavailable to Midwest and that that in itself... He didn't accept at face value.

[00:50:35] Speaker 09:
He actually agreed that Midwest had taken all reasonable efforts to locate Mr. Jones and hadn't been able to.

[00:50:41] Speaker 03:
You can just accept that at face value.

[00:50:43] Speaker 03:
But if you look at Mr. Jones and Mr. Stalart, Mr. Jones was already gone.

[00:50:49] Speaker 03:
from the company by the time the charge involved.

[00:50:52] Speaker 09:
I understand, but it's easier to find somebody in the first year or 18 months than it is four years later.

[00:50:57] Speaker 03:
Right.

[00:50:58] Speaker 03:
That is well taken, Your Honor.

[00:51:01] Speaker 03:
But the other issue is that Mr. Jones actually did not deny.

[00:51:07] Speaker 03:
He filed a contemporaneous statement in this case, and it's in the record, and I unfortunately don't have the record citation.

[00:51:16] Speaker 03:
He did file a response to a grievance that was filed over his unlawful statement.

[00:51:22] Speaker 03:
And in that response, he didn't deny that he made the statement.

[00:51:26] Speaker 03:
He said it may have been misunderstood.

[00:51:29] Speaker 03:
But really, there's no dispute about whether he made the statement.

[00:51:31] Speaker 03:
It's what its legal effect is.

[00:51:33] Speaker 03:
And the court can assess that.

[00:51:34] Speaker 06:
And if he had been present as a witness, he could have been examined about this, couldn't he?

[00:51:40] Speaker 03:
I'm sorry?

[00:51:40] Speaker 06:
If he had been present as a witness, he could have been examined about those things that you're saying aren't in his statement, right?

[00:51:47] Speaker 03:
Well, that's true, Your Honor.

[00:51:49] Speaker 06:
So there's quite a bit of prejudice to his not being there, this statement.

[00:51:53] Speaker 06:
I think you just played yourself out of court on that one.

[00:51:56] Speaker 06:
You can't say this statement is any kind of substitute.

[00:52:01] Speaker 06:
It's the very lack of some specificity that illustrates just how prejudicial this was.

[00:52:08] Speaker 06:
Isn't it?

[00:52:09] Speaker 03:
Well, it's possible that he may have been able to explain what he meant by his statement.

[00:52:15] Speaker 03:
But again, his intentions would be irrelevant to the issue of whether there was a Section 8A1 violation, because the standard is a reasonable tendency to coerce.

[00:52:28] Speaker 03:
And I think that, respectfully, Your Honor, the Board is in a good position to judge that without the aid of his testimony.

[00:52:37] Speaker 06:
Without having it.

[00:52:38] Speaker 06:
We don't need evidence.

[00:52:41] Speaker 03:
It's an objective standard.

[00:52:44] Speaker 09:
So your position is that the content of the statement wasn't disputed?

[00:52:48] Speaker 09:
Yes.

[00:52:49] Speaker 09:
And that what he meant by it, he would have been able to testify to, but wasn't able to because of the time delay.

[00:52:54] Speaker 09:
His intention doesn't matter because as to this coercion, it's an objective inquiry.

[00:52:59] Speaker 09:
So as long as the content of the statement isn't in dispute, there's no prejudice.

[00:53:04] Speaker 09:
Right.

[00:53:05] Speaker 03:
And as to Mr. Stahler, I mean, Midwest is quite vague about what he would have contributed.

[00:53:10] Speaker 03:
He was deceased at the time of the hearing.

[00:53:15] Speaker 03:
But Midwest suggests that he could have testified to hiring procedures.

[00:53:20] Speaker 03:
Of course, Midwest already had the testimony of one witness and a lot of documentation on that issue.

[00:53:26] Speaker 03:
And so the board submits that it's questionable as well whether Mr. Stahler was critical to Midwest's defense, because I think that's the relevant question in regard to prejudice.

[00:53:38] Speaker 03:
The board does not believe that latches would apply.

[00:53:42] Speaker 03:
even if it could apply against the government, which it cannot.

[00:53:48] Speaker 03:
If the court has no further questions, the board will rest on its brief as to the remaining issues.

[00:53:55] Speaker 03:
Thank you.

[00:54:04] Speaker 00:
Good morning.

[00:54:04] Speaker 00:
I'm Heather Beard, and I'm board counsel in the case we call Midwest II.

[00:54:09] Speaker 00:
This is a case where the board found additional unfair labor practices following Midwest 1.

[00:54:14] Speaker 00:
And in Midwest 2, the board found Midwest made three unlawful unilateral changes to the employees' terms and conditions of employment without bargaining, and discriminated against two active union employees, Otis Brown and Dave Hubbard, for filing grievances and charges with the board.

[00:54:31] Speaker 00:
My opponent began with Mr. Otis Brown's discharge, so I would like to begin with Mr. Brown's discharge as well.

[00:54:38] Speaker 00:
Taking a step back from all of the reasons the company is attempting to justify the discharge of Mr. Brown, what we have first is the right line test.

[00:54:48] Speaker 00:
And under right line, here, we have an enormous amount of animus that the general counsel demonstrated, which mostly is not challenged by Midwest, showing that the

[00:55:01] Speaker 00:
Charges Mr. Brown filed and the grievances that he filed were a motivating factor in the discharge.

[00:55:07] Speaker 00:
And that animus consists of first, the timing that this occurred, that this was seized upon, that this incident was seized upon, was six weeks after he testified in Midwest One.

[00:55:21] Speaker 00:
It was also just a couple months after he was one of the leaders of a work stoppage about the company's unilateral changes.

[00:55:30] Speaker 00:
So we have that.

[00:55:31] Speaker 00:
We also have the Dave Hubbard, which is important, although our Midwest has waved any challenge to Mr. Hubbard because the violations with regard to Mr. Hubbard that took place right before Mr. Brown was terminated involved statements made to Mr. Hubbard that paperwork was not going to be filled out by the company for him because of the fact that he had filed board charges and grievances.

[00:55:53] Speaker 00:
And then he was denied pay for work that he otherwise would have been paid under the contract and under past practice.

[00:56:00] Speaker 00:
So when you look at that, you look at the timing and you look at the work stoppage comment that Mr. Leach made to one of the two work stoppages in the summer of 2013 that was led by Brown, the comment that I'm this far off your ass with a finger movement to Jay Victorian, we see ample animus

[00:56:24] Speaker 00:
without even getting to the disparate treatment, which I will get to.

[00:56:26] Speaker 00:
I'm sorry.

[00:56:30] Speaker 00:
There is a J Victorian and there is an F Victorian.

[00:56:34] Speaker 00:
In this instance, J Victorian Jr.

[00:56:36] Speaker 00:
is the person involved in the work stoppage.

[00:56:39] Speaker 00:
And then we have a discharge of... Right, okay.

[00:56:43] Speaker 00:
I thought it was the same person in both.

[00:56:44] Speaker 00:
Okay.

[00:56:44] Speaker 00:
Right.

[00:56:45] Speaker 00:
Okay.

[00:56:45] Speaker 00:
So once that animus is shown by the general counsel, thus that there's a motivating factor in the action taken against Mr. Brown,

[00:56:55] Speaker 00:
Then the company has the burden of showing it would have taken the same exact action, discharge Mr. Brown for the Kawasaki incident, had there not been any of his protected activity.

[00:57:05] Speaker 00:
And this is where it is key that the board found the burden isn't met.

[00:57:08] Speaker 00:
And so we'll start with a few points my opponent made.

[00:57:11] Speaker 00:
First of all,

[00:57:13] Speaker 00:
He was talking about Jay Victorian and saying that this was a comparable discharge.

[00:57:18] Speaker 00:
This is the only one where we have someone who has damaged equipment that has been terminated for it.

[00:57:25] Speaker 00:
There's numerous examples in the record of multiple money that has been spent on problems.

[00:57:32] Speaker 00:
And with regard to Mr. Victorian, this is Jay Victorian.

[00:57:36] Speaker 00:
There was no question there who was responsible, and it said in the discharge notice, this is very key, that it was due to progressive discipline, the two other instances that he had had, both of which were instances that were his fault.

[00:57:50] Speaker 00:
Those were instances that were cited.

[00:57:52] Speaker 00:
However, with regard to Mr. Brown,

[00:57:55] Speaker 00:
There was nothing in the discharge, nothing from what Mr. Leach testified to, nothing from what Mr. Leach said to him ever, was that this is so bad because you also had these other two instances back in the day.

[00:58:06] Speaker 00:
And my opponent has pointed out something I believe that is incorrect, which is that the board didn't consider two other instances of discipline of Mr. Brown.

[00:58:14] Speaker 00:
It absolutely did.

[00:58:15] Speaker 00:
It's on page 29, the decision and order in this case, which is at JA 108.

[00:58:20] Speaker 00:
where the board did recognize there had been other instances with Mr. Brown, but there has not been, there was no, at the time, discussion of Mr. Brown's earlier incidents.

[00:58:30] Speaker 00:
It was so severe.

[00:58:31] Speaker 09:
Talking about the 2007 and 2008?

[00:58:32] Speaker 00:
2007, 2008, and 2012.

[00:58:35] Speaker 00:
There was two, there's a footnote on page, JA108 at page 20.

[00:58:40] Speaker 09:
The footnote was only about seven and eight.

[00:58:41] Speaker 00:
Yes, you're right, your honor.

[00:58:43] Speaker 00:
But above the footnote in the actual text, the judge talks about 2012.

[00:58:48] Speaker 00:
And so because those were not referenced, the key is why did they say he was discharged?

[00:58:53] Speaker 00:
They said he was discharged because he caused severe damage to this.

[00:58:59] Speaker 09:
Well, because he violated the company, or sorry, the equipment misuse or abuse

[00:59:05] Speaker 09:
Right.

[00:59:06] Speaker 09:
Policy room.

[00:59:07] Speaker 09:
It didn't say the specific incident.

[00:59:09] Speaker 00:
Right.

[00:59:10] Speaker 00:
You're right, Your Honor.

[00:59:11] Speaker 00:
Yes, it didn't say the specific incident, but that was the reason that was given him what we testified to is because of what happened to the three Kawasaki and because of that initial incident report by Growick.

[00:59:20] Speaker 00:
That is why he was terminated.

[00:59:22] Speaker 00:
Never that he had had all sorts of other instances and therefore he's equivalent to Jay Victorian.

[00:59:27] Speaker 00:
So the board's position is that when we're here in the land of the employer has to prove it would have done this anyway, it hasn't met its burden with the comparators that are in the record nor with

[00:59:37] Speaker 00:
Jay Victorian.

[00:59:39] Speaker 00:
The other factor that I think is important to point out is this issue about the, why did Mr. Growick include in his report this statement, operator, it was due to operator error, could have easily been because of operator error.

[00:59:55] Speaker 00:
We're not questioning Growick's testimony or anything.

[00:59:57] Speaker 00:
What we're saying is when the

[00:59:59] Speaker 00:
employer has to prove it would have done this anyway, and you have an employee, we're not alleging Mr. Jones is management, an employee who has talked to Mr. Leach before saying,

[01:00:09] Speaker 00:
put something in the report about operator error, and Mr. Growick says, in 23 years, he's never been asked to do that.

[01:00:16] Speaker 00:
It's just another piece of circumstantial evidence the company's not been able to demonstrate.

[01:00:21] Speaker 00:
It would have terminated the lead union activist and union president who had just testified against it.

[01:00:27] Speaker 00:
So that's one piece in their rebuttal burden that they have failed to meet.

[01:00:33] Speaker 00:
And I think another piece that's important is this investigation.

[01:00:37] Speaker 00:
Your Honor's discussed this a bit with my opposing counsel.

[01:00:41] Speaker 00:
Yes, there were 12 other reports after the first report.

[01:00:44] Speaker 00:
And those reports took place throughout, this incident occurred in September of 2013.

[01:00:48] Speaker 00:
And Brown would continue to do reports all throughout October.

[01:00:53] Speaker 00:
And as the brief, as we make the point in our brief, throughout October, Mr. Brown, yes, he was discharged October 1st, but he's going through a grievance process whereby at each stage,

[01:01:03] Speaker 00:
He's saying, don't terminate me, don't terminate me.

[01:01:07] Speaker 00:
And what the company has failed to explain is why, as there's other reports that Growick is filling out, are those not considered?

[01:01:18] Speaker 00:
They're not talking to Growick throughout the entirety.

[01:01:20] Speaker 00:
And I believe it is in our brief.

[01:01:22] Speaker 00:
At one of the grievance meetings, Mr. Brown

[01:01:25] Speaker 00:
position is the union wants me to be reinstated and the company says Mr. Leach says that's not going to happen.

[01:01:31] Speaker 00:
So the board's position is that given that the company has not met its burden here of showing that had Mr. Brown not engaged in a plethora of protected activity and grievances that they would have taken the same action and the

[01:01:50] Speaker 00:
The board's finding on that is supported by substantial evidence.

[01:01:54] Speaker 00:
So now I'd like to talk about the aluminum and calcium.

[01:01:58] Speaker 00:
First of all, with regard to the aluminum.

[01:02:01] Speaker 00:
The board's finding is that regardless of the interpretation of Judge Sentel or Judge Millett about what does a forklift do in terms of loading for purposes of the aluminum.

[01:02:17] Speaker 00:
Regardless, the plain language of the 10K decision does not speak to work that involves

[01:02:28] Speaker 00:
taking forklifts and moving them to the dry side.

[01:02:32] Speaker 00:
And when the gravamen of this violation

[01:02:35] Speaker 00:
is that work of loading, either trucks, either forklifts, loading the aluminum has been taken away from the ILA employees.

[01:02:45] Speaker 00:
There is a bargaining obligation that the employer has.

[01:02:48] Speaker 00:
So there's no doubt that there has been work taken away from ILA and that that is a mandatory subject of bargaining.

[01:02:56] Speaker 00:
That's never been shown.

[01:02:56] Speaker 09:
Well, they say in the history, the whole history was before the board in that proceeding, and it included forklift loading as well as truck loading.

[01:03:05] Speaker 00:
I understand that Judge Millett, but the conclusion in the board's 10K determination is that they are going to award it consistent with past practice, which took into account the testimony and everything that happened in the 10K.

[01:03:19] Speaker 00:
And when awarding it with past practice, as the board found here, and the company was able to put on its witnesses and showed absolutely no prejudice from not being able to include that 10K hearing, here in this hearing,

[01:03:31] Speaker 00:
There were a multitude of witnesses that were able to say Teamsters were not taking their forklifts and driving them over to the wet side prior to what happened in the summer of 2013.

[01:03:43] Speaker 06:
There was one... So we don't have to decide, contrary to all the construction people I ever knew, that when you pick something up with a forklift, you are committing an act of loading, if you will.

[01:03:57] Speaker 06:
Even if you are not, you're still changing the way that

[01:04:01] Speaker 06:
load gets carried from the wet side to the dry side that was the locals' work before and becomes the teamsters' work about the change in methodology.

[01:04:12] Speaker 00:
Well, I would say it doesn't become the Teamsters work without the company bargaining because the mandatory subject is... No, I'm not... I think we're missing each other in the middle on that.

[01:04:23] Speaker 06:
I'm not suggesting that the company had a right to change it to the Teamsters work.

[01:04:27] Speaker 00:
Okay.

[01:04:27] Speaker 06:
I'm suggesting perhaps that they didn't have such a right.

[01:04:31] Speaker 00:
Correct.

[01:04:31] Speaker 06:
Whether you call that loading or not loading, the work of getting the aluminum off the ground in the

[01:04:39] Speaker 06:
wet side has been the work of the local.

[01:04:42] Speaker 00:
Correct.

[01:04:43] Speaker 06:
The teamsters may have taken it over when it got across and it was being warehoused or whatever happened across.

[01:04:47] Speaker 06:
I don't know what they did there.

[01:04:48] Speaker 06:
That doesn't matter.

[01:04:49] Speaker 06:
They're changing the act of getting it across, whether you call it loading or something else.

[01:04:54] Speaker 00:
And I agree with you, Your Honor, thank you.

[01:04:57] Speaker 00:
And I do believe that there's other evidence that the past practice was not the reason why they kept on, why the forklifts were sent over.

[01:05:06] Speaker 00:
I believe Mr. Leach himself even said the reason, and that's why the two work stoppages were so heated, he said,

[01:05:14] Speaker 00:
The 10K allows us to do this.

[01:05:15] Speaker 00:
The 10K allows us to do this.

[01:05:17] Speaker 00:
So it's not a situation where we had years and years and years of the same thing having happened, the forklift having been used from the Teamster.

[01:05:24] Speaker 00:
So I think that we've established there was a past practice.

[01:05:27] Speaker 00:
There was some evidence that maybe from 2005 to 2006 on occasion a forklift had maybe come from the Teamster side.

[01:05:35] Speaker 00:
But that's all.

[01:05:36] Speaker 00:
And that's not sufficient to demonstrate that there had been a past practice.

[01:05:39] Speaker 00:
And that also informed the

[01:05:41] Speaker 00:
the judge's evidentiary finding, which was well taken, that there was no need for there to be hearsay testimony from a Teamsters individual, Mr. Jay, who had recently just become a Teamster

[01:05:54] Speaker 00:
steward to say that others had told him that in the past there had been forklifts coming over.

[01:06:01] Speaker 00:
So that there was nothing to indicate any sort of prejudice from his testimony not being taken, given that there was not evidence that this little period was one to constitute a past practice.

[01:06:12] Speaker 00:
So with regard to the calcium, I see my time is up.

[01:06:15] Speaker 00:
If I could just have one minute to rebut his calcium.

[01:06:17] Speaker 00:
All right, well I want to ask you something about seed time too, but go ahead.

[01:06:19] Speaker 00:
Sure.

[01:06:20] Speaker 00:
Okay, we'll get to seed time.

[01:06:21] Speaker 00:
As regards to calcium,

[01:06:22] Speaker 00:
Our position, the board's position is not that somehow it violates the 10K for what happened with calcium.

[01:06:29] Speaker 00:
The board's position is very simple, which is with forklifts, it was taking the ILA's work with loading.

[01:06:35] Speaker 00:
With calcium, it's taking away their work of unloading because they were storing the calcium before significantly on the wet side, which is where the ILA folks would unload it.

[01:06:46] Speaker 00:
And in November 2013, it's undisputed,

[01:06:49] Speaker 00:
They started storing the calcium on the dry side.

[01:06:53] Speaker 00:
And that took, again, the work away from the ILA folks, which is the change.

[01:06:59] Speaker 00:
And so, yes, seat time.

[01:07:00] Speaker 09:
So I just want to ask you quickly, they seem to be making the argument that they had to eliminate seat time training because OSHA regulations, Port Authority requirements obligated them only to allow

[01:07:17] Speaker 09:
certified folks into the cabs of these cranes.

[01:07:20] Speaker 09:
But as I read the OSHA regulation, section F1, it does provide for operator and training to be inside the crane as long as there's sufficient supervision requirements.

[01:07:35] Speaker 09:
So I want to make sure I understand the board's position on this.

[01:07:41] Speaker 09:
Is it that because there was a legal way to continue

[01:07:46] Speaker 09:
seat training consistent with OSHA regulations, that's what they were supposed to negotiate?

[01:07:53] Speaker 09:
Because sometimes it reads like and sounds like in the briefing that they had to, whatever the law required, they still had to negotiate.

[01:08:02] Speaker 00:
Right.

[01:08:03] Speaker 00:
So let me... The former or latter?

[01:08:05] Speaker 00:
It's the former.

[01:08:07] Speaker 00:
Now there was no, we didn't rely on OSHA regulations here.

[01:08:11] Speaker 00:
What we were doing is taking a look at what the employer was arguing is to say we didn't have to bargain over seat time.

[01:08:16] Speaker 00:
And they said it's because in 2010 and 2011 the Port Authority said you can't

[01:08:21] Speaker 00:
have operators of cranes who haven't had the certification.

[01:08:24] Speaker 00:
And the violation is sort of what you outlined with regard to OSHA.

[01:08:29] Speaker 00:
There is nothing in what the Port Authority said or in any regulation that was at issue here that would prevent training someone to sit up in there and be trained while the crane was being operated.

[01:08:41] Speaker 00:
And so because nothing legally precluded them from doing it, there was a bargaining obligation when they decided to discontinue the decision.

[01:08:49] Speaker 09:
The position is not that

[01:08:50] Speaker 09:
regardless of what the Port Authority or OSHA regulations might require, you still have to negotiate.

[01:08:58] Speaker 09:
Right, now I would say your Honor.

[01:09:00] Speaker 09:
Stop doing something that is, I get this case is complicated, but if you had a situation where Congress passes a law that says nobody inside a crane who's not already certified, period, full stop.

[01:09:14] Speaker 00:
That would definitely be a different case here.

[01:09:16] Speaker 09:
Well, your position here wouldn't suggest that they didn't have to negotiate allowing people in there to violate the law.

[01:09:23] Speaker 09:
That's an illegal subject.

[01:09:25] Speaker 09:
Right.

[01:09:26] Speaker 00:
I would say if it's an illegal subject of bargaining, of course, they wouldn't have to bargain over it.

[01:09:31] Speaker 00:
But to the extent that there could be discussions since their past practice had always been something different, there may have been, and this isn't that case, but there may still be something that would be an obligation for them to bargain over or effects bargaining, something like that.

[01:09:45] Speaker 00:
Change in training program.

[01:09:45] Speaker 00:
Right.

[01:09:46] Speaker 00:
Exactly.

[01:09:46] Speaker 00:
I just want to make sure, because it wasn't so clear in the briefing.

[01:09:49] Speaker 09:
Sorry.

[01:09:50] Speaker 09:
To me, I should say it wasn't so clear to me.

[01:09:53] Speaker 09:
Okay, my time's up.

[01:09:55] Speaker 09:
Thank you.

[01:10:11] Speaker 01:
May it please the court, Rebecca Johnson.

[01:10:13] Speaker 01:
I will be talking about what we have called Midwest Three.

[01:10:17] Speaker 01:
This case picks up shortly after the unfair labor practice violations found in Midwest Two.

[01:10:23] Speaker 01:
In April of 2014, Midwest added two individuals to its skilled list of employees, which determines how much they work.

[01:10:32] Speaker 01:
And in doing so, it violated Section 885, 3, and 1 of the Act.

[01:10:37] Speaker 01:
The board's findings in this regard are amply supported by the record evidence, especially including its well-supported credibility findings.

[01:10:46] Speaker 01:
The board found two separate 885 violations with respect to

[01:10:52] Speaker 01:
the Midwest adding two individuals to the skilled list in April of 2014.

[01:10:56] Speaker 01:
To start, Midwest unilaterally departed from the contract selection criteria.

[01:11:04] Speaker 01:
Under the party's collective bargaining agreement, an individual must possess four out of five qualifications to be added to the skilled list.

[01:11:13] Speaker 01:
Midwest, however, added an individual, Joe Victorian Jr., who had only three of the qualifications.

[01:11:20] Speaker 01:
an argument just now.

[01:11:22] Speaker 01:
Midwest claims that he had four.

[01:11:24] Speaker 01:
But the judge and the board looked at the documentary evidence, which is all the orders of call in the record, and found that in fact he only had three qualifications listed on those orders of call.

[01:11:37] Speaker 01:
Midwest made a new argument just now that in order to be a crane operator he necessarily had to also be qualified as a

[01:11:47] Speaker 01:
signal person.

[01:11:48] Speaker 01:
It did not make this argument in its briefing and the judge found otherwise.

[01:11:56] Speaker 01:
With respect to departing from the contractual selection criteria, Midwest also departed from another provision of the contract whereby it needed to follow seniority with two individuals of relatively equal qualifications seniority was supposed to control.

[01:12:12] Speaker 01:
The board concedes that Mr. Canales was qualified for the skill list.

[01:12:17] Speaker 01:
Nevertheless, Mr. Russell was passed over who had the most seniority and also Mr. F. Victorian Jr.

[01:12:25] Speaker 01:
was also passed over who had less seniority than Canales but more seniority than Joe Victorian Jr.

[01:12:33] Speaker 01:
Midwest again tries to challenge the qualifications of the people that it passed over, Mr. Russell and Mr. F. Victorian Jr.

[01:12:41] Speaker 01:
As we point out in our brief, these are amply supported by substantial evidence, particularly the judge's credibility findings.

[01:12:48] Speaker 01:
The judge credited the human resources director Blakely over that of operations manager Mr. Leach, who the board found was unusually unreliable.

[01:13:03] Speaker 01:
Turning to the second section 885 violation, Midwest also unilaterally departed from its past practice of meeting with the union to discuss skill list additions before putting people on the list.

[01:13:15] Speaker 01:
There is ample record evidence of this past practice, most importantly in this 2012 human resources memorandum in which human resource manager Blakely explicitly admits to the past practice in his reply brief

[01:13:30] Speaker 01:
Midwest readily admits that this memo refers to the past practice.

[01:13:34] Speaker 01:
And in the record, in addition to this memo, we have Blakely's testimony.

[01:13:39] Speaker 01:
We have Brown's testimony.

[01:13:40] Speaker 01:
We also have testimony from Leach, who, after being impeached with testimony from another hearing, grudgingly admitted to the past practice.

[01:13:50] Speaker 01:
And it's uncontested that Midwest added these two individuals without discussing with the union first.

[01:13:55] Speaker 09:
What does meet and confer entail?

[01:14:00] Speaker 09:
It seems like the whole range of activities here.

[01:14:02] Speaker 01:
Typically they would just discuss and get input from the union before adding individuals to the list.

[01:14:08] Speaker 01:
It wasn't sitting down at a table and bargaining necessarily.

[01:14:13] Speaker 09:
Could meet and confer just mean emailing over here's our proposed additions to the list just to give them notice?

[01:14:22] Speaker 01:
No, it went beyond just notice.

[01:14:23] Speaker 01:
It went to discussions and seeking input from the union before adding people to the list.

[01:14:31] Speaker 01:
Turning finally to the discrimination violation, this is also well supported by the record evidence.

[01:14:38] Speaker 01:
F. Victorian Jr.

[01:14:39] Speaker 01:
was especially active in the union.

[01:14:42] Speaker 01:
He was elected union steward, he filed grievances, he challenged contract issues, and in particular, he was involved in a work stoppage over a jurisdictional dispute.

[01:14:52] Speaker 01:
During this work stoppage, he confronted Mr. Leach, and Leach responded to his protected activity

[01:14:59] Speaker 01:
holding his fingers out and saying, I'm about this far off your ass.

[01:15:03] Speaker 01:
The board and the judge relied on this statement as evidence of anti-union animus.

[01:15:08] Speaker 06:
I'm wondering if that statement, at least by itself, would be evidence of anti-union animus.

[01:15:14] Speaker 06:
I mean, it obviously indicates an animosity toward the person who's eyes he's about that far off of, but that doesn't necessarily mean the union.

[01:15:22] Speaker 06:
He may have disliked him for any number of reasons.

[01:15:25] Speaker 06:
Is it necessarily anti-union?

[01:15:27] Speaker 01:
The board drew the inference that that statement was in response to his protected activity.

[01:15:33] Speaker 01:
And although it wasn't pledged.

[01:15:34] Speaker 06:
That's a bit circuitous.

[01:15:36] Speaker 06:
You were using it to show animosity.

[01:15:39] Speaker 06:
And now you're saying that they drew their inference because of his animosity.

[01:15:44] Speaker 01:
They drew the inference that it was evidence of animus.

[01:15:50] Speaker 01:
But in addition to that statement, we also have what the majority of the board relied on, which are the contemporaneous unfair labor practices.

[01:15:56] Speaker 01:
in Midwest 1 and Midwest 2, and the board used those as background evidence of animus.

[01:16:03] Speaker 01:
And finally, the employer was unable to meet his affirmative defense.

[01:16:07] Speaker 01:
As the judge and the board found, F.E.

[01:16:10] Speaker 01:
Torian Jr.

[01:16:10] Speaker 01:
was qualified for the skilled list, so its claim that he wasn't is not supported.

[01:16:16] Speaker 09:
Thank you.

[01:16:19] Speaker 09:
How much time do we have?

[01:16:25] Speaker 09:
You wanted a little more than that, I think.

[01:16:27] Speaker 04:
Please, I would greatly appreciate it.

[01:16:29] Speaker 04:
We'll give you five minutes.

[01:16:30] Speaker 04:
OK, thank you, Your Honor.

[01:16:34] Speaker 04:
I'll start with Midwest 3.

[01:16:38] Speaker 04:
First, in regards to the credibility findings, Mr. Russell indicated that he was a qualified hatch leader.

[01:16:49] Speaker 04:
He had been hired once in 2009, and that made him a qualified hatch leader.

[01:16:56] Speaker 04:
As indicated in our brief, we spent four pages outlining all the times Mr. Russell lied under oath.

[01:17:08] Speaker 04:
And Al J. Bogus even admitted that he was not a trustworthy witness.

[01:17:14] Speaker 09:
So this is a credibility determination you're asking us to overturn?

[01:17:19] Speaker 04:
Correct.

[01:17:20] Speaker 09:
Do you have any cases where we've actually overturned a credibility determination?

[01:17:23] Speaker 04:
No, and I've never written a brief where I've spent four pages outlining a witness lying under oath, admittedly lying under oath, and the ALJ saying he's not trustworthy.

[01:17:35] Speaker 09:
But we have a case law that when there's two untrustworthy witnesses, which is sort of your point, ALJs get to choose between.

[01:17:46] Speaker 04:
Oh, and he'd no doubt pick the one that I would expect him to choose, Your Honor.

[01:17:52] Speaker 09:
So they're both untrustworthy.

[01:17:53] Speaker 09:
I guess I'm not quite understanding how it helps to lay out that Mr. Russell is untrustworthy.

[01:18:00] Speaker 04:
I find it odd that Mr. Leach gives self-serving testimony, but Mr. Russell doesn't.

[01:18:06] Speaker 04:
The whole process.

[01:18:09] Speaker 04:
You do understand the standard of review, though.

[01:18:12] Speaker 04:
Correct.

[01:18:14] Speaker 04:
Helplessly incredible and self-contradicting.

[01:18:18] Speaker 04:
I think four pages of lying under oath, lying on affidavits.

[01:18:22] Speaker 06:
When you understand that he's having to choose between unreliable witnesses, then he gets to do it.

[01:18:27] Speaker 06:
We don't have the right nor the duty to do it.

[01:18:29] Speaker 04:
I understood, Your Honor.

[01:18:31] Speaker 04:
Guess that's something we'll have to try to change at a later date.

[01:18:35] Speaker 04:
As far as bargaining, meet and confer.

[01:18:37] Speaker 04:
She admitted meet and confer is not bargaining.

[01:18:40] Speaker 04:
But yet we've been hit with a violation of 8-8-1-5.

[01:18:43] Speaker 09:
Because you stopped meeting and conferring without bargaining about meeting and conferring.

[01:18:48] Speaker 04:
We do not meet and confer with the union over the skilled list.

[01:18:52] Speaker 04:
We do not meet and confer.

[01:18:53] Speaker 04:
Otis Brown, the very first case, Midwest One.

[01:18:57] Speaker 09:
It's a fact finding now that you're asking us.

[01:18:59] Speaker 04:
ALJ Charismy stated.

[01:19:01] Speaker 09:
Just to be clear, so now we're debating a factual finding.

[01:19:03] Speaker 04:
Correct, we're going back to fact finding.

[01:19:04] Speaker 04:
ALJ Charismy stated the company decides when people go on the skilled list.

[01:19:11] Speaker 04:
So what are we meeting and conferring about?

[01:19:13] Speaker 04:
We don't meet and confer.

[01:19:15] Speaker 04:
Otis.

[01:19:15] Speaker 09:
They're not inconsistent at all.

[01:19:17] Speaker 04:
We do not meet and confer.

[01:19:18] Speaker 09:
I will meet and confer with my kids before I make a decision.

[01:19:21] Speaker 04:
But you know what?

[01:19:22] Speaker 09:
I make the decision.

[01:19:23] Speaker 04:
And we don't do that.

[01:19:25] Speaker 04:
The only thing they ask the community is.

[01:19:27] Speaker 09:
I want to get back.

[01:19:27] Speaker 09:
You just quoted that statement.

[01:19:28] Speaker 09:
But you see how that doesn't either here nor there with whether you meet and confer before you put folks on the list.

[01:19:33] Speaker 04:
So OK.

[01:19:34] Speaker 04:
But what I'm saying is, what does meet and confer mean?

[01:19:36] Speaker 04:
We want Otis on the list.

[01:19:37] Speaker 04:
We don't.

[01:19:37] Speaker 04:
So that's it?

[01:19:39] Speaker 04:
What is the process there?

[01:19:43] Speaker 04:
Are we supposed to bargain about people's qualifications?

[01:19:46] Speaker 04:
They're either qualified or they're not qualified.

[01:19:50] Speaker 04:
There's nothing to meet and confer about.

[01:20:00] Speaker 05:
Who determined that you had to have skills in these five areas?

[01:20:04] Speaker 05:
Was that part of the collective bargaining agreement?

[01:20:06] Speaker 04:
That was part of the collective bargaining agreement.

[01:20:08] Speaker 05:
May I ask you, since I've raised that subject, this goes back to Midwest One and the dues checkoff?

[01:20:16] Speaker 05:
Yes.

[01:20:17] Speaker 05:
The memorandum of understanding was valid only until a new collective bargaining agreement came into effect on its terms, is what it said.

[01:20:26] Speaker 05:
On its terms.

[01:20:27] Speaker 05:
On its terms, that's what it said.

[01:20:28] Speaker 05:
When, if ever, has a new collective bargaining agreement been reached between the employer and the union?

[01:20:36] Speaker 04:
We do not.

[01:20:37] Speaker 04:
We have not yet and do not have a new agreement with the union.

[01:20:41] Speaker 04:
But Section 8D, even if you go under a midterm modification theory, Section 8D does not state an agreement without clear traditional language doesn't live in perpetuity.

[01:20:53] Speaker 05:
So the situation now is that

[01:20:57] Speaker 05:
It's a continuation of the terms of the old agreement?

[01:21:01] Speaker 04:
It was until the employees decertified the union in January of 2018.

[01:21:05] Speaker 05:
They decertified?

[01:21:07] Speaker 04:
Correct.

[01:21:09] Speaker 04:
I'm sorry.

[01:21:10] Speaker 04:
We received a petition.

[01:21:10] Speaker 04:
We withdrew recognition.

[01:21:12] Speaker 04:
So we had more than 50%.

[01:21:16] Speaker 04:
So we both, the company and the union, submitted letters stating that the contract was being terminated.

[01:21:27] Speaker 04:
The MOU was also terminated under 8D.

[01:21:30] Speaker 04:
It was timely.

[01:21:32] Speaker 04:
With respect to due checkoff again.

[01:21:34] Speaker 09:
You're saying you satisfied 8D?

[01:21:36] Speaker 04:
Correct.

[01:21:37] Speaker 09:
Where did you prior to termination?

[01:21:40] Speaker 09:
First, you were supposed to wait 60 days.

[01:21:41] Speaker 09:
You didn't wait 60 days.

[01:21:42] Speaker 04:
Did you notice that?

[01:21:44] Speaker 09:
Under 8D, you're supposed to wait 60 days.

[01:21:46] Speaker 04:
We filed our termination agreement on October 3rd.

[01:21:49] Speaker 04:
We filed notice of termination with the union on October 3rd.

[01:21:53] Speaker 09:
Sorry.

[01:21:55] Speaker 09:
OK.

[01:21:55] Speaker 09:
And then when did you stop?

[01:21:56] Speaker 04:
When we stopped deducting dues, it was January 2013.

[01:21:59] Speaker 04:
January 18th.

[01:22:01] Speaker 04:
I believe so.

[01:22:02] Speaker 04:
January 18th, 13th, somewhere around there.

[01:22:04] Speaker 04:
Does that make 60 days?

[01:22:05] Speaker 09:
I thought it was later in October.

[01:22:11] Speaker 09:
I think you were before 60 days.

[01:22:13] Speaker 04:
Correct.

[01:22:14] Speaker 04:
October, November, December.

[01:22:15] Speaker 04:
So we're right around 90 days.

[01:22:19] Speaker 09:
I thought it was November.

[01:22:21] Speaker 04:
When we stopped deducting dues or when we said we weren't?

[01:22:23] Speaker 04:
No, the notice.

[01:22:25] Speaker 04:
No, we terminated the contract on October 3rd.

[01:22:30] Speaker 04:
We terminated the contract on October 3rd.

[01:22:32] Speaker 06:
When did you actually say we were stopping the collection?

[01:22:34] Speaker 04:
We stopped.

[01:22:35] Speaker 04:
We said we were going to stop dues on November 19th, I believe.

[01:22:38] Speaker 04:
November 13th, 19th, somewhere around there.

[01:22:41] Speaker 06:
Now, do you have 60 days from that November 19th date until you actually started?

[01:22:47] Speaker 06:
No, because I believe.

[01:22:50] Speaker 06:
You're short about a week, aren't you?

[01:22:53] Speaker 06:
Correct.

[01:22:54] Speaker 09:
Did you notify the Federal Mediation Service as 8D requires?

[01:22:57] Speaker 04:
Excuse me?

[01:22:58] Speaker 09:
Did you notify the Federal Mediation Service as 8D requires?

[01:23:01] Speaker 04:
I believe there was.

[01:23:03] Speaker 04:
I'm not sure.

[01:23:04] Speaker 04:
I believe there was, but it's not part of the record and I can't answer that.

[01:23:06] Speaker 09:
Did you offer to bargain over continuing the dues checkoff?

[01:23:10] Speaker 09:
Because if I read your notice to the

[01:23:14] Speaker 09:
to the attorney, to the union, it just said we're going to do this.

[01:23:17] Speaker 09:
It didn't offer to borrow.

[01:23:18] Speaker 09:
You said you complied with 8D and I'm going through the other elements.

[01:23:21] Speaker 04:
I understand what you're asking.

[01:23:23] Speaker 09:
All right, then my question is on the document where you said we gave notice that we were not going to continue the checkoff and then you stood here and said that satisfied 8D.

[01:23:34] Speaker 09:
where in the text of that document do you offer to bargain over that?

[01:23:39] Speaker 04:
On November 19th, we're still operating under old Bethlehem Steel, so we don't have to bargain over that.

[01:23:46] Speaker 09:
That's a different question from whether you had complied with AD.

[01:23:52] Speaker 09:
AD has four elements.

[01:23:54] Speaker 04:
Correct, and I'm saying if we did not,

[01:23:59] Speaker 04:
The notice of saying November 13th in and of itself, then no, we missed it by a few weeks.

[01:24:08] Speaker 04:
I'm not going to sit up here and say that we complied with 60 days if we were two weeks short.

[01:24:14] Speaker 04:
What I'm saying is we terminated the contract on October 3rd.

[01:24:17] Speaker 04:
So the agreement had expired, it was over.

[01:24:26] Speaker 04:
Back to the dues and the MOU.

[01:24:30] Speaker 04:
The MOU was never introduced to trial with respect to a waiver argument.

[01:24:35] Speaker 04:
It wasn't.

[01:24:36] Speaker 04:
The MOU was introduced at trial over the issue of whether or not the parties executed and came to an agreement on a successor agreement.

[01:24:46] Speaker 04:
It was literally one page of testimony on that issue.

[01:24:50] Speaker 09:
But you do have an ALJ finding, right?

[01:24:53] Speaker 09:
You have an ALJ finding that

[01:24:57] Speaker 09:
The parties affirmed their commitment to the continuation of a new dues checkoff provision until a successor legal agreement was reached.

[01:25:06] Speaker 04:
And he made that without any argument?

[01:25:09] Speaker 09:
I understand that argument.

[01:25:13] Speaker 09:
But this is the ALJ, so you're still going up to the board.

[01:25:16] Speaker 09:
So were you not on notice at that point that the board was making this, that the ALJ had made this finding about what that MOU meant,

[01:25:23] Speaker 09:
And so you're on plenty of notice to argue about that.

[01:25:26] Speaker 09:
I assume you took exception to that sentence.

[01:25:28] Speaker 04:
We took exception to the sentence with respect to our waiver argument.

[01:25:32] Speaker 09:
You didn't accept to it as to his description of what the MOU was.

[01:25:35] Speaker 04:
No, because he said that he did not make his ruling that we violated the act with respect to secession of dues checkoffs based upon that MOU.

[01:25:43] Speaker 04:
He based it upon WKYC.

[01:25:45] Speaker 04:
It's crystal clear what he made his decision on.

[01:25:49] Speaker 04:
Had we not accepted to that, then we waive our waiver argument.

[01:25:54] Speaker 04:
So I mean, it's a catch-22.

[01:25:56] Speaker 04:
Yeah, we have to.

[01:25:57] Speaker 05:
We have to raise it.

[01:25:58] Speaker 05:
Aside from due process, what's your argument against the application of the memorandum of understanding?

[01:26:05] Speaker 04:
Other than due process and not knowing that it was actually being litigated, the fact

[01:26:12] Speaker 04:
that we put no evidence on whatsoever with respect to that document.

[01:26:16] Speaker 05:
Put aside the procedural question.

[01:26:17] Speaker 05:
What's your substantive answer to the language of the MOU which says that you're going to continue to do this check off until a new... The substantive answer is it was an amendment to the contract and the contract expired and was terminated.

[01:26:36] Speaker 05:
But the MLU did it.

[01:26:39] Speaker 05:
It said, we'll keep doing this until a new collective bargaining agreement is reached.

[01:26:44] Speaker 04:
Correct.

[01:26:45] Speaker 04:
There's no durational language.

[01:26:46] Speaker 04:
But you're still allowed to terminate a durational language agreement.

[01:26:51] Speaker 04:
If this were the case, if people could have documents that could live in perpetuity, we would have these all over the place.

[01:27:00] Speaker 04:
And we don't.

[01:27:04] Speaker ?:
OK.

[01:27:05] Speaker 09:
Alright, thank you very much.

[01:27:06] Speaker 04:
Thank you.

[01:27:07] Speaker 09:
The case is submitted.