[00:00:02] Speaker 00:
Case number 17-1102 at L. Pueble Inversiones de Puerto Rico, Inc., DBA, L. Versero de Puerto Rico, Petitioner vs. National Letter Relations Board.

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Mr. Bay Montes, the petitioner.

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Ms.

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Isbell, respondent.

[00:01:02] Speaker 02:
Good morning, Your Honors.

[00:01:03] Speaker 02:
Good morning.

[00:01:04] Speaker 02:
May it please the Court?

[00:01:05] Speaker 02:
My name is Attorney Alberto Villayu, on behalf of the petitioner, Pul Inverciones, Inc.

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Your Honors, the main issue in this case is whether there was substantial evidence on the record to find that Pul Inverciones was a successor employer by a high-end majority of the workforce of Caribbean International News, and if also there was substantial evidence to find that he had enterprise between CIN and Pul Inverciones.

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Is your primary argument based on the addition of the inserters?

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Correct, Your Honor.

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On that point, our main, recently there was a board decision in PC Structural Inc.

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which is tied into that main issue and it's whether or not the employers on the PC Structural Inc.

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has to show that there is an overwhelming community of interest

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between employees who want to be included in the bargaining unit and the unit employees.

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Since part of our contention is that the unit was no longer appropriate.

[00:02:08] Speaker 04:
Ah, this is the key to your case, is it?

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The key to your case is that the addition of inserters makes the prior existing unit inappropriate.

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Correct.

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And do you realize what a tough burden you have to establish that a unit is, what is the phrase we use, strictly or surely or... Truly.

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Truly, that's right.

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Truly inappropriate.

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Is that your view?

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Yes, Your Honor, but as I said pretty soon... Do you recognize, of course, that the statute allows the Board to pick an appropriate unit, not the appropriate unit?

[00:02:50] Speaker 02:
Yes, Your Honor, but under PC Structural, it goes to that.

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It also emphasizes the importance in making unit determinations, whether or not they are appropriate under the Act.

[00:03:02] Speaker 04:
So in other words, your case depends on the determination that the unit is no longer truly appropriate?

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Correct, Your Honor.

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So that's exactly the same standard that it would apply if there was a new proceeding

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before your company, and a union wanted the representation of all but the inserters.

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On the grounds the inserters were not covered by the same medical plan, and they were part-timers.

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that under those circumstances, as a matter of law, such a unit would be truly inappropriate?

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Correct, Your Honor.

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Inserters in this case, based on the evidence on the record, it's important to note that prior to the acquisition of the newspaper, the inserters were not directly employed by CIN.

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They were hired through a third party

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We know all about that.

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But so the standard we should apply is exactly the same standard that would apply if this was a new case, but it wasn't a successor ship.

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And the union sought a unit excluding the inserters.

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And the question is what would be under our law, most importantly, Blue Man Vegas opinion, would that be truly inappropriate?

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That is a very tough burden because the board might argue in that case the inserters should be excluded because they're part timers and they're not covered under medical plan.

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And do you have any cases?

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that would stand for the proposition?

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I believe that in the reply, Your Honor, with regards to the particular issue of whether their classification as being part-timers should not be taken into account in determining whether or not your units are appropriate.

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Yes, that case is where the board included part-timers, not whether they excluded them.

[00:05:05] Speaker 02:
Yeah, but it's their status in order to make that determination.

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There's no flat law on that.

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They could be included, they could be excluded.

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The only grounds on which you have to establish is that that unit would be truly inappropriate.

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I find it very hard to grasp that position, given the law.

[00:05:26] Speaker 02:
Well, yes, your honor, but, you know, as I said, you know, recently the board in Volkswagen, the Council for the Board in the case of Volkswagen Group, they asked this court to reverse the case, remand the case back to the board pursuant to the PC structural standing, reverting the traditional community of interest standard.

[00:05:45] Speaker 02:
Although in that case, it does not involve an issue of successorship.

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They'd argue that it was important because they were arguing that... What was the holding in PC?

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PC structural, the holding was that the union was no longer appropriate because of the differences in standards and... No longer appropriate?

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What happened?

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The court did not emphasize on whether... Which court?

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Our court?

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No, the board.

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The board, sorry.

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The board did not emphasize whether or not, as you mentioned, the unit has to be the most appropriate unit.

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It did emphasize a lot that it's important just to take into account the interests of all parties, included and excluded, because both parties have many employees within the unit, and those that are excluded have

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also have rights under Section 7, and it's important to avoid having micro units or units that are arbitrary.

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Was this an initial case, an initial representation case?

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Yes, I believe so.

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Not a successorship.

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Not a successorship, Your Honor.

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But I believe that the rights are also in cases of secession should also be taken into account, particularly more since the evidence on the record shows that insurers in this case are part of an integrated operation.

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You have the press employees, then you have the insurers who are right in the middle of the production phase, and then you have the dispatch employees.

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And just to

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Conclude that inserters based on the evidence that's on the record should be separate or form a separate unit

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I think is not supported by the evidence on the record, mostly because they have a lot of interest in common.

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And going back to PC Structural, the court there says that in making unit determinations, it has to be a case-by-case analysis, and you have to determine whether or not the differences in interest outweighs the interest that they do have in common.

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And I believe here that the interests that they have in common are greater than the interests that are different.

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If not, you know, it's also, PC Structural emphasizes that in the majority rule cases also, and the board's responsibility under Section 9 of the Act,

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to make unit determinations.

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So I strongly believe, Your Honor, that in this case it's very crucial that whether the query will apply or not PC structural or the alternative, remand the case so that the board can revisit its decision and analyze it under the new standard for the community of interest.

[00:08:28] Speaker 02:
Which, as I mentioned, I don't know if I mentioned, but if you take a look at the ALJ's decision specifically, the ALJ makes the determination that there wasn't a community of interest.

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It doesn't say whether or not there was an overwhelming, but it says that there were no compelling reasons to determine that the unit was no longer appropriate.

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So, and also the findings that it made, it also looks like the analysis was somewhat incomplete in terms of whether or not there was a community of interest.

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What's the PC structural case that you're talking about?

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Yeah.

[00:09:05] Speaker 02:
Your Honor, that's a... the decision is not on the briefs because the decision came in December and the briefs were already... And did you send us a letter about it or anything?

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I was a little worried I was losing it.

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Oh, sorry, Your Honor.

[00:09:18] Speaker 02:
Excuse me.

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We didn't supplement the citations.

[00:09:22] Speaker 02:
It's not in the briefs and it's not a supplement.

[00:09:24] Speaker 02:
No, Your Honor.

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The citation is, the case is 365 and RRB 160.

[00:09:29] Speaker 05:
It's a little bit late for us to be looking at an LRB case at this point.

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So the other members of the unit are pressmen, reporters, radio operators,

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like that, right?

[00:09:47] Speaker 05:
Yes, Your Honor.

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And what the inserters do is they take a piece of paper and stick it in the middle of another piece of paper, is that right?

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Yeah, well, they also help with preparing the packages and sending them to the dispatch employees, who are also the unit employees.

[00:10:01] Speaker 04:
And they're paid considerably less than the rest.

[00:10:04] Speaker 02:
Yes, Your Honor, but if you take a look at the wages of the unit employees themselves, there is also a wide gap between them.

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You have unit employees who earn $11, and also you have others who earn $24.

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So the gap is wider between the unit employees than it is between... What are insiders paid?

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are $7.25.

[00:10:22] Speaker 02:
So what was that?

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$7.25.

[00:10:25] Speaker 04:
So at least $5 less than the lowest.

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But within the same unit, you have employees that's... That's true.

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And they're only part-time.

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They're only part-time.

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You also have some of them that work, I think, have regular work schedules.

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But most of the times, they also work overtime.

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So it depends on the level of production.

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And also, they have a similar word schedule to that of the dispatchers, which is from 9 p.m.

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to 5 a.m.

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There's a dispute about whether they communicate with each other.

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Is that right?

[00:11:00] Speaker 02:
There is – with regard to the communication, I know that the board relied – the board relied – gave substantial weight to the testimony given by one of the witnesses by the name of Mendez.

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Who the board regarded as credible.

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Yes, Your Honor.

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So we would, to go the other way, we'd have to conclude that the Board was wrong in regarding this witness as credible.

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I know it's a matter of credibility determinations.

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I know because also, on the other hand, you have the testimony given by the full inversionist witness, Elijo de Coni, who is the director of operations.

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Just to be clear, we'd have to overturn their factual determination with respect to communications.

[00:11:39] Speaker 02:
As to that point, yes.

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Going back to whether or not the analysis of the interest as they shared, it is important to point out that the party stipulated in the case that inserters as well as the bargaining unit employees have the same terms and conditions of employment.

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similar compensation and benefits, that they also are subject to the same human resources department.

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So there are facts that were stipulated.

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That's on Joint Appendix 23.

[00:12:05] Speaker 05:
What about the health care?

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In terms of health care, they're not entitled to the medical plan.

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But that's basically the only difference in terms of benefits.

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In all aspects, they are the same.

[00:12:21] Speaker 01:
Any other questions?

[00:12:26] Speaker 01:
No question.

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Thank you, Your Honor.

[00:12:39] Speaker 03:
May it please the Court, Kelly Isbell here on behalf of the National Labor Relations Board.

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I have with me at council table Mr. Miguel Simonet, who's the Council for the Union.

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There's a presumption that historical bargaining units are presumptively appropriate.

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And to overcome that presumption, the company has to show that the historical bargaining unit is repugnant to board policy, that it no longer corresponds to normal standards of appropriateness, or that there are compelling circumstances to overcome.

[00:13:10] Speaker 04:
You know what's interesting about this case?

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I can't find any board case or court case that has really

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grappled with the question of whether or not the unit, the additional employees, which under Fall River and Burns, we normally what you would look at to determine whether there's a continuity of successorship.

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Whether that is different when you're talking about

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people outside of an existing or succeeding appropriate bargaining unit.

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So your brief doesn't talk about, doesn't say, look, if the unit continues to be appropriate, just as it would be appropriate in an initial proceeding because inserters are excluded, that's adequate.

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You understand what I'm saying?

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The board has not put that together clearly.

[00:14:11] Speaker 03:
You mean in terms of the new employees in the unit and substantial continuity?

[00:14:19] Speaker 04:
Yes.

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In other words, the board doesn't say explicitly that if the new company comes in and adds a number of employees, which

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do not destroy the appropriateness of the existing bargaining unit and there's still a majority in the existing bargaining unit than there is successor ship.

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The board hasn't really put that together.

[00:14:52] Speaker 03:
I agree.

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I have not found any cases that are similar to this.

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What we have are cases where there are

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non-represented and represented employees that are merged because of a buyout, and that would be the die case.

[00:15:04] Speaker 04:
But do you think we're right in concluding that the question, and counsel seems to concede this, that the issue is really whether the existing unit without the inserters is an appropriate unit.

[00:15:19] Speaker 03:
Yes, Your Honor.

[00:15:20] Speaker 04:
And if it is an appropriate unit, then there is a successor ship.

[00:15:25] Speaker 03:
Yes, Your Honor.

[00:15:26] Speaker 04:
And that would be true

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even if the unit theoretically was a very small group of, say, technical types and there was no addition to the employees to that unit.

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In other words, our union represented, say, a hundred people out of a thousand.

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A hundred people were special technicians and you have a new company comes in and it takes on the same thousand employees

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but a hundred of them are represented as a technical group.

[00:16:01] Speaker 04:
That would be a successorship, wouldn't it?

[00:16:03] Speaker 03:
Yes, Your Honor.

[00:16:04] Speaker 03:
And I think that's similar to this Court's decision in community hospitals, where the hospital changed from a public to private, and the only unit left was one unit of nurses.

[00:16:15] Speaker 04:
So why doesn't your brief specifically say, the only issue here is whether the existing unit

[00:16:22] Speaker 04:
without the insiders is an appropriate unit.

[00:16:25] Speaker 04:
If it is an appropriate unit, there is successorship.

[00:16:29] Speaker 03:
I thought I did, but perhaps I did not say it very clearly.

[00:16:32] Speaker 03:
I will go back and tell my supervisor that I failed you.

[00:16:37] Speaker 04:
Bring the supervisor in.

[00:16:38] Speaker 03:
Why don't you?

[00:16:40] Speaker 04:
Many years ago, I argued cases for the NLRB.

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I ignored supervisors.

[00:16:45] Speaker 03:
I will also tell them that when I get back.

[00:16:48] Speaker 03:
I mean, in my applicable principles section, we do talk about the fact that the board only has to approve an appropriate unit, not the most appropriate unit.

[00:16:57] Speaker 03:
And certainly here, the remaining, the historical bargaining unit is an appropriate unit.

[00:17:03] Speaker 03:
There is nothing that makes it inappropriate, certainly nothing that makes it repugnant.

[00:17:07] Speaker 04:
Truly inappropriate.

[00:17:08] Speaker 03:
Truly inappropriate.

[00:17:09] Speaker 04:
As we said in Blue Man Vegas.

[00:17:12] Speaker 03:
Exactly.

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I mean, I think we've dealt with PCC structurals, but that was a new case.

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And it's a specialty health care case.

[00:17:22] Speaker 04:
None of us have any idea what you guys are talking about.

[00:17:24] Speaker 04:
We don't have any idea because this is new.

[00:17:29] Speaker 03:
Specialty health care was the board's, it's often called the micro unit decision, which was overturned by the new board.

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And it has no implication for historical bar.

[00:17:40] Speaker 03:
Do you have a new board?

[00:17:42] Speaker 03:
We do, Your Honor, after President Trump.

[00:17:46] Speaker 05:
Can you, I'm having a little trouble following the back and forth between you and Judge Silverman.

[00:17:51] Speaker 05:
So, just so I understand the underlying basics.

[00:17:56] Speaker 05:
As long as the board, the unit that the board certifies is an appropriate unit, we have to uphold it.

[00:18:04] Speaker 05:
Correct one, right?

[00:18:08] Speaker 03:
Yes.

[00:18:08] Speaker 05:
And that's true in a successorship as well, as long as the historical unit is an appropriate unit, then it counts for successorship.

[00:18:17] Speaker 03:
Yes.

[00:18:18] Speaker 05:
Now, there's also a presumption that the historical unit is an appropriate unit.

[00:18:25] Speaker 03:
Correct.

[00:18:27] Speaker 05:
Does that apply here, or is there some difference between, and maybe it's a little hard for me to guess, the difference between an appropriate unit and a presumption of an appropriate unit?

[00:18:37] Speaker 05:
Do you think there is a presumption?

[00:18:39] Speaker 05:
You certainly said in your briefs, and I certainly thought, there would be a presumption that the historical unit would be an appropriate unit.

[00:18:48] Speaker 03:
When the Board is dealing with a successorship situation, it does not look at the unit in the same way it would in an initial bargaining situation.

[00:18:56] Speaker 04:
Yeah, that's the thing that mystified me, because why wouldn't it?

[00:18:59] Speaker 04:
Why in God's name wouldn't it?

[00:19:00] Speaker 04:
Because it seems to me it's exactly the same issue.

[00:19:05] Speaker 04:
You made that point in a brief.

[00:19:07] Speaker 04:
That's why I was going through this dialogue, because it doesn't make any sense.

[00:19:11] Speaker 03:
Well, I think as this Court pointed out, and I believe it was trying at Seafoods, historical bargaining units are often less than ideal.

[00:19:18] Speaker 03:
Not inappropriate, but less than ideal, and something the Board might not, in an initial bargaining situation, have necessarily approved.

[00:19:28] Speaker 03:
But in the historical bargaining unit situation, the unit

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must be appropriate.

[00:19:34] Speaker 04:
I'm not saying that the... Are you saying there's a tougher standard of appropriateness in a successorship case than it would be in an initial proceeding?

[00:19:43] Speaker 03:
I'm saying it's easier for the union in a successorship case.

[00:19:47] Speaker 05:
Because they've been operating together for a long time, the employees... The underlying question is what would the employees think was an appropriate unit?

[00:19:55] Speaker 04:
Yes.

[00:19:55] Speaker 05:
And they've been operating that way for a long time historically.

[00:19:58] Speaker 05:
That's different than a circumstance where you have a brand new company, for example, new employees, new units.

[00:20:06] Speaker 04:
Exactly.

[00:20:06] Speaker 04:
But it's a force you are, because if this was clearly an appropriate unit initially, then it's clearly an appropriate unit in the successor ship.

[00:20:15] Speaker 03:
I would also agree with that.

[00:20:17] Speaker 05:
So we don't necessarily have to decide the presumption question, as long as we think it's an appropriate unit.

[00:20:23] Speaker 05:
Am I am I getting the Venn diagrams correctly?

[00:20:26] Speaker 03:
Yes, I think you are your honor.

[00:20:27] Speaker 03:
Okay.

[00:20:28] Speaker 04:
Yeah, I knew he would love the Venn diagram.

[00:20:32] Speaker 05:
Okay, further questions?

[00:20:34] Speaker 03:
Thank you.

[00:20:37] Speaker 05:
All right, is there time left?

[00:20:40] Speaker 05:
We'll give you another minute.

[00:20:41] Speaker 02:
Your honor.

[00:20:46] Speaker 02:
Two points.

[00:20:47] Speaker 02:
With regards to the presumption that was just being discussed, it's a rebuttable presumption as to whether the unit is appropriate.

[00:20:54] Speaker 02:
And it is important in making that analysis on the Fall River whether or not you have to take a look at the composition of the workforce in successive cases.

[00:21:03] Speaker 02:
And in this case, there is a change in the workforce that has directly affected.

[00:21:07] Speaker 04:
If there was, if under Fall River, Fall River didn't deal with the question of the separate

[00:21:13] Speaker 04:
category of employees like insurgents.

[00:21:17] Speaker 04:
It assumed that it was talking about one unit and it set forth the principle of law that if in the one unit that we're talking about there's an enormous expansion of employees then the successorship doctrine wouldn't apply.

[00:21:39] Speaker 04:
That isn't this case.

[00:21:41] Speaker 02:
Well your honor, I believe that based on the changes that were implemented.

[00:21:44] Speaker 02:
Sorry?

[00:21:45] Speaker 02:
Based on the changes that were implemented.

[00:21:46] Speaker 04:
Oh, now you're going to the operational changes.

[00:21:49] Speaker 04:
I'm not going to try.

[00:21:50] Speaker 02:
Different kind of magazine.

[00:21:51] Speaker 02:
I'm not going to get into that, but I would like to say for, just to try, since I don't have much time, that the counselor just mentioned Trident, so that case involved is a successive case, but it also in that case should be noted that in that case at least one of the units was determined not to be

[00:22:06] Speaker 02:
appropriate because it excluded employees from the bargaining unit itself.

[00:22:13] Speaker 02:
So that's also related to this case.

[00:22:17] Speaker 02:
So I understand that you have to take a look at the community of interest as the court did in Trident.

[00:22:24] Speaker 02:
So it's a similar case in that aspect.

[00:22:26] Speaker 02:
We only deal here with one unit.

[00:22:29] Speaker 02:
But I believe that the court should take a look at as to the change in determining whether or not there is community of interest.

[00:22:36] Speaker 05:
That just stands for the proposition that sometimes the board wins and sometimes the board loses.

[00:22:40] Speaker 05:
Is that all you're saying, right?

[00:22:41] Speaker 05:
Correct.

[00:22:41] Speaker 05:
It's not always the case that whatever unit the board picks is always right.

[00:22:46] Speaker 05:
That's the point of trying.

[00:22:47] Speaker 04:
Sometimes you get the bear and sometimes the bear gets you.

[00:22:50] Speaker 05:
That's right, Your Honor.

[00:22:52] Speaker 05:
I'm not sure that's what I meant.

[00:22:55] Speaker 04:
Okay.

[00:22:55] Speaker 05:
That's called a bear doctrine.

[00:22:56] Speaker 05:
Yeah.

[00:22:58] Speaker 05:
All right.

[00:22:58] Speaker 05:
Further questions?

[00:22:59] Speaker 05:
None.

[00:23:00] Speaker 05:
All right.

[00:23:00] Speaker 05:
Thank you.

[00:23:00] Speaker 05:
Thank you, Your Honor.