[00:00:00] Speaker 00:
16-1311 and out Staff Co of Brooklyn LLC petitioner versus National Labor Relations Board.

[00:00:09] Speaker 00:
Mr. Ryder for the petitioner, Mr. Cantor for the respondent, Mr. Seitzer for the interviewee.

[00:00:32] Speaker 06:
Good morning.

[00:00:34] Speaker 06:
May it please the Court, my name is Nicholas Reiter and I represent the Petitioner Cross Respondent in this matter, Staff Co.

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of Brooklyn, LLC.

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This is a petition for review of a National Labor Relations Board decision and order in which the Board improperly determined that Petitioner Staff Co.

[00:00:51] Speaker 06:
violated Section 8A.5 and 1 of the National Labor Relations Act.

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The petition for review should be granted for three reasons.

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First, the board improperly determined that the pension plan continuation policy at the center of this case did not constitute a waiver of the status quo obligation to maintain pension fund contributions after the expiration of the party's final collective bargaining agreement.

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Second, in the alternative, the board improperly rejected Staffco's alternative waiver argument, namely that the union alternatively waived the status quo obligation by failing to diligently request bargaining after Staffco notified the union that it was not going to continue pension fund contributions past its three-year participation anniversary in the NISNA pension plan.

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And third, Your Honors, the board's remedy here overreached

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and the board ignored the impossibility of performing the remedy.

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It ignored documentary evidence from the Nisant Pension Plan stating that it would no longer accept contributions.

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Did your client make any attempt to make a contribution?

[00:02:00] Speaker 06:
Not after the final expiration of the collective bargaining agreement in May 2014, Your Honor.

[00:02:07] Speaker 05:
No.

[00:02:07] Speaker 05:
If we analogize your impossibility defense to an impossibility defense in a contract action,

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that there that might be an affirmative defense where you would have the burden.

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Is that the case here, or does the board retain the burden?

[00:02:26] Speaker 06:
No, it's StaffCo's burden to prove its impossibility defense, but the board majority ignored evidence as to the impossibility defense.

[00:02:33] Speaker 05:
They didn't ignore anything.

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That's not fair.

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If they looked at the evidence in this case, they can even discuss it.

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Stavka's position is that it improperly disregarded the weight of compelling evidence as to the impact.

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The principle argument here is waiver.

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This is a waiver case.

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And the continuation policy is really at the center of this case.

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It's undisputed that the parties had to follow

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the pension plan's rules.

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You had testimony from the lead program representative, Eric Smith, lead program representative from the union.

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That's Joint Appendix page 19.

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He testified.

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You had to follow the NISNA pension plan rules.

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Joint Appendix page 420, the final page of the party's final CBA extension agreement, it says that the sole and exclusive authority

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to determine pension benefits rests with the NISNIP pension plan.

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That's in the bargain for document between the employer and the union in this case.

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They agreed in their final collective bargaining agreement extension that they were going to be completely subordinate to the rules of the NISNIP pension plan and the continuation policy states that upon expiration of a collective bargaining agreement,

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that Staff Coast participation in the pension fund will end unless there's a signed interim agreement or extension agreement.

[00:03:55] Speaker 01:
And does your argument depend on participation and obligation being essentially synonymous?

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Participation in the plan or obligation to fund the employee's pension benefit?

[00:04:11] Speaker 06:
In the sense of Cawthorn Trucking and the Board's precedent, yes, but in the sense of the definitions, no, Your Honor, it's a distinction without a difference, really, because here, unlike some of the other waiver and non-waver cases that are cited by both parties, we really have two bodies of case law, right?

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We have Cawthorn Trucking and Oak Harbor Freight Lines, the waiver cases on one hand, and then we have a body of non-waver cases, Schmidt Tiago, KBMS, General Tyre and Rubber,

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And in none of those non-waiver cases that the board so heavily relies upon, in none of those cases do they talk about upon the expiration of a collective bargaining agreement.

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Whereas in our case, and really like Cawthorn Trucking, they talk about what happens upon the expiration

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of a collective bargaining agreement.

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And yes, as your honor points out, the board is trying to hang its hat on the use of the word participation in this case, instead of the use of the word obligation.

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But we can look to the party's past practices here, and especially the very telling admissions from the union's lead negotiator.

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You have Michelle Green, the union's lead negotiator.

[00:05:18] Speaker 01:
Well, I'm not sure how far I would go down that road.

[00:05:21] Speaker 01:
I mean, you want belt and suspenders if you're representing employees.

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You know, life is simpler for them if they say, you know, let's keep this up, we'll have, nothing will change.

[00:05:33] Speaker 01:
I don't know.

[00:05:33] Speaker 01:
So I think, I mean, I think stronger for you is Cawthorn and Oak Harbor and, you know, the language there that's quite closely analogous to the language here.

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Is there any...

[00:05:47] Speaker 01:
Anything that we should be cognizant of differentiating fund and plan?

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For people not as steeped as all of you are in this area, the fine distinctions of participation and obligation of fund and plan may carry more weight than are apparent to us.

[00:06:08] Speaker 06:
Yes, Your Honor.

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To address your last point, there is the Nisena Pension Fund, which is the actual entity in which contributions are deposited.

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And then there's the Nisena Pension Plan, which is the entity that creates the rules.

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And that's the entity on which the letterhead is stated, for example.

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The warning notice, when all parties were warned that StaffCo was terminated as a contributing employer, that was on Nisena Pension Plan letterhead.

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But to address your honor's comment about belts and suspenders, you know, that's an argument that's made by the union and the board, and very significantly in that portion of the brief, page 24 of the board brief, for example, they call it the path of least resistance, not belts and suspenders, there's not one citation to the record in that part of their brief.

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They can't cite any testimony or any documentary evidence that that was the real reason that they executed five

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interim or extension agreements in less than a two-year period.

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The evidence that we have is Michelle Green's testimony where she stated, when she was asked point blank, why did you execute so many of these agreements?

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Why didn't you rely on the status quo obligation?

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She said to make sure pension fund contributions would continue.

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Maybe one of the most important documents in this case is Michelle Green's October 12, 2012 email.

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That's Joint Appendix, page 107.

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That's the cover email that she sent to the union's lead negotiator, Mr. Brian Clark.

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That was the first time they signed one of these extension agreements.

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And she said to Brian Clark, quote,

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Hello, Brian.

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We need to send the signed interim agreement back to the fund.

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See attachment.

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To continue the pension benefit in the event we do not reach an agreement."

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End quote.

[00:07:56] Speaker 06:
She didn't say to continue StaffCo's participation.

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She said to continue the pension benefit.

[00:08:02] Speaker 04:
Now you're really giving the lawyerly, you know, expecting in an email some sort of lawyerly

[00:08:09] Speaker 04:
you know, care with words and terms that I think goes beyond what we should do on review in a case like this, aren't you disappointed?

[00:08:20] Speaker 06:
Well, respectfully no, Your Honor, because it's the board and the union that are arguing about the significance of the words.

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And it's not as if this was some low-level employee.

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This was the lead negotiator for the union, and she was the one who negotiated and drafted the extension agreement.

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So it's some of the best evidence we have about the true intent

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of the parties here, which is at the center of this case.

[00:08:43] Speaker 04:
But there is a very... Well, my other question is, I mean, you talk about there's no reference to the record, et cetera, and that the plan should control, but if you look at language in the plan, like at, what's it, JA 187, it's a definition of employer at section 2.05.

[00:09:07] Speaker 04:
The plan distinguishes between the obligation of an employer to make contributions to the pension plan and when an employer ceases to be an employer for the purposes of the trust policy and the employer's obligations to make distributions.

[00:09:33] Speaker 04:
So I'm not sure that I guess the record is so clear cut that your obligation to make contributions is synonymous with when you, the distinction that you're seeking to make here, I'm not sure that it's borne out by even the way that the plan describes the employer's obligations.

[00:10:02] Speaker 06:
That section is defining an employer under the plan, whereas the policy for the continuation of pension fund coverage upon the expiration of the collective bargaining agreement, that's speaking directly to what happens to the employer's participation in the pension plan upon the expiration of a CBA without an interim or extension.

[00:10:20] Speaker 04:
But I guess my point is that the

[00:10:23] Speaker 04:
The board, in its decision, said that we can distinguish between your obligation to make contributions to a plan and the determination of

[00:10:41] Speaker 04:
collective bargaining agreement or the expiration of a collective bargaining agreement kind of for for similar rationales and that's what that's key to this case that you're asking us to reject that reasoning by the board right yes yes your honor staff who is asking this court to reject that reasoning particularly in light of the party's

[00:11:52] Speaker 01:
to the employees, right?

[00:11:53] Speaker 01:
So you could stop participating in the plan, but still have obligations to the employees.

[00:12:00] Speaker 06:
Not under this collective bargaining agreement.

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Remember, this is a status quo case that extends the obligations in the collective bargaining agreement.

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This collective bargaining agreement said pension benefits had to be through the NISNA pension plan.

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It couldn't be through another plan.

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That was what the parties agreed in their collective bargaining agreement.

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That's Joint Appendix 420 especially.

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It said that the NISMA pension plan had sole and exclusive authority to determine the benefits for planned participants and to make changes there too, which would include the pension plan rules.

[00:12:34] Speaker 01:
That's when they're the provider, but if they went out of business, presumably that would fall away, and yet the employer's obligation

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would continue.

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I mean, if they went out of business, you wouldn't think, well, you know, when, when Aetna starts providing a plan that Knysna is the sole determinant of its terms, right?

[00:12:55] Speaker 06:
Yes, Your Honor.

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But this collective bargaining agreement does not say pension fund contributions in a general matter to union members.

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It says pension contributions through the NISNA pension plan.

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That's specifically what the parties agreed here.

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No more, no less.

[00:13:10] Speaker 01:
And I guess that's why I was asking the question, because I was probing, you know, surely that doesn't mean the selection of this plan doesn't mean that if this plan were defunct that the obligation

[00:13:23] Speaker 01:
And I think your answer to that has to be right.

[00:13:27] Speaker 01:
It wouldn't, you know, it's not their bad luck that, you know, and the employer's good luck that this obligation is evaporated.

[00:13:36] Speaker 06:
Well, no, at that point, and that actually segues into the alternative waiver argument,

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At that point, the onus is on the union to demand bargaining over the effects of the failure in this hypothetical of the NISMA pension plan.

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And that's exactly what did not happen here.

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There's unrebutted testimony from Mr. Clark, the lead negotiator for the employer, that he put the union on notice that StaffCo wasn't going to go beyond the May 2014, the three-year participation anniversary, and that they were going to discontinue pension fund contributions.

[00:14:09] Speaker 06:
And at that point, the burden was on the union to demand bargaining, or otherwise it would waive the status quo obligation.

[00:14:17] Speaker 06:
That's an alternative waiver argument that the board majority never really considered with any in-depth analysis.

[00:14:23] Speaker 04:
But the board essentially found that the May 20th meeting

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resulted in a request for bargaining by the union.

[00:14:35] Speaker 04:
Didn't the board make that finding?

[00:14:36] Speaker 06:
Right, and that is a strong departure from board precedent, from this court's precedent, and from circuit court precedent around the country.

[00:14:44] Speaker 06:
There's two types of bargaining demands.

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There's an explicit bargaining demand and an implicit bargaining demand.

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The board, it appears from its brief, knows better than to claim explicit bargaining demand here, because there was no express words that said, we hereby demand bargaining on post-contract pension fund contributions.

[00:15:01] Speaker 06:
Instead, the board is arguing an implicit bargaining demand was made.

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And this court and board precedent has held that when it's an implicit bargaining demand situation, there needs to be some indicia that shows a desire to bargain.

[00:15:16] Speaker 06:
There needs to be a suggested meeting place, a suggested meeting time, proposed bargaining topics, and a proposed method for reply.

[00:15:23] Speaker 06:
I see that my time is up, but if I may answer Judge Wilkins' question.

[00:15:28] Speaker 06:
They're 0 for 4 on all of those factors in this case.

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They don't have one of them.

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let alone any of them for the court's consideration.

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And all that undisputably happened.

[00:15:39] Speaker 06:
Because my client has a different version of events, but even if you accept the union's version of events at what happened to that May 20th meeting, Eric Smith said to StaffCo, continue pension contributions, sign another agreement.

[00:15:53] Speaker 06:
That's very supportive of StaffCo's petition for review for two reasons.

[00:15:57] Speaker 06:
One, by virtue of the fact that he's demanding they sign another agreement that supports the first waiver argument that there was waiver under the policy for continuation of coverage.

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But two, all he's doing there is at most protesting.

[00:16:12] Speaker 06:
He's objecting to Staffco's notice that it was going to discontinue pension fund contributions.

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This court and the board's own precedent, because, hell, that's not enough.

[00:16:23] Speaker 04:
Staffco's, I'm forgetting his title, but he says, well, look, have Ms.

[00:16:30] Speaker 04:
Green or have somebody contact, who is it, Mr. Clark?

[00:16:35] Speaker 04:
Yes, Your Honor.

[00:16:36] Speaker 04:
Who is the negotiator for Staffco, right?

[00:16:38] Speaker 04:
Yes, Your Honor.

[00:16:39] Speaker 04:
And there's testimony in the record from Ms.

[00:16:41] Speaker 04:
Green, who's the negotiator for the union, that after that May 20th meeting, that she and Clark had several conversations about all of this.

[00:16:57] Speaker 04:
in that time period between May the 20th and I guess July the 28th or whenever the 60-day period was up, right?

[00:17:09] Speaker 06:
No, Your Honor.

[00:17:10] Speaker 06:
There's no record evidence that Michelle Green ever contacted Brian Clark.

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Brian Clark offered unrebutted testimony

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that no one from the union ever contacted him.

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And it's very significant that the administrative law judge in this case found that from May 22nd to July 31, there was no bargaining demand from the union in this case.

[00:17:32] Speaker 04:
So I'm going to look at JA 516, left column, second full paragraph.

[00:17:42] Speaker 04:
Yes, Your Honor.

[00:17:45] Speaker 04:
the last sentence of that second full paragraph.

[00:17:49] Speaker 04:
Nevertheless, Green stated that she continued to ask Clark for the respondent to resume its contributions to the pension fund as late as July 28th because the pension fund provided a 60-day grace period, etc.

[00:18:04] Speaker 04:
And it's talking about there what she did after May 22nd.

[00:18:09] Speaker 04:
So isn't that evidence that here, this is part of the ALJ's opinion.

[00:18:22] Speaker 06:
Not for a demand for bargaining, Your Honor.

[00:18:25] Speaker 06:
And in the same page, if Your Honor scrolls down two more paragraphs, the first sentence of that paragraph, as testified by Smith, Green confirmed that the union did not request to bargain with StaffCo between May 22 and July 31.

[00:18:41] Speaker 06:
The board and the union in this case have not taken an exception from that finding of fact.

[00:18:47] Speaker 04:
I saw that, and that seemed to be very problematic.

[00:18:52] Speaker 04:
And it also seems to kind of contradict, though, what the ALJ and the board ultimately conclude in this case, where they say that there was no failure to bargain or no waiver by the union.

[00:19:10] Speaker 04:
So I didn't know whether that meant that there was no written request to bargain, as is said in the very next sentence, and that's what they're saying.

[00:19:24] Speaker 06:
If I may, Your Honor, you're touching upon one of the most important issues in this case, and that is the very subtle but very material and well-established distinction between merely protesting an employer's proposed action

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and actually making a demand for bargaining.

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This court in Prime Service Inc.

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v. NLRB and the board itself in Citizens National Bank of Willmar, they've both held that merely protesting an employer's action, demanding that the employer reverse that action,

[00:19:57] Speaker 06:
That's not enough for the union to satisfy its affirmative obligation to demand bargaining.

[00:20:03] Speaker 06:
And that is an alternative ground for waiver.

[00:20:06] Speaker 06:
And this inconsistency that your honor is pointing out, that's just yet another reason for review, to grant the petition for review in this case.

[00:20:14] Speaker 06:
The board majority gave the union a complete pass on its failure to demand bargaining.

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And the board is now trying to say that this May 20th meeting was somehow an implicit bargaining demand.

[00:20:26] Speaker 06:
At most, all Mr. Smith did was object to the employer's proposed action at that time.

[00:20:33] Speaker 06:
This court and the board's precedent has held that's not enough.

[00:20:38] Speaker 06:
And that is another reason why the petition for review should be granted.

[00:20:42] Speaker 01:
Thank you.

[00:20:43] Speaker 01:
We'll give you a couple minutes to rebuttal after your opponents.

[00:20:45] Speaker 01:
Thank you, Your Honor.

[00:21:03] Speaker 03:
May it please the court, Jared Cantor, on behalf of the National Labor Relations Board.

[00:21:07] Speaker 03:
Your Honor, this staff vote just mentioned in its opening part of the argument that this case is being litigated in front of the court on its affirmative defenses.

[00:21:16] Speaker 03:
And obviously, it did bear the burden on all of them.

[00:21:21] Speaker 03:
There certainly is no contesting that there was a statutory obligation, that then they ceased to honor it, and that there was no bargaining.

[00:21:29] Speaker 03:
So the elements of the violation of 8A5 are there.

[00:21:33] Speaker 03:
The question then just is whether they met the affirmative defenses that they are urging.

[00:21:39] Speaker 03:
And respectfully, the board submits that they did not.

[00:21:42] Speaker 03:
Turning Judge Wilkins just to the end of the opening part of the argument,

[00:21:49] Speaker 03:
I think what the part of the DNO that you're citing there is talking about is that there were no written that, as you pointed out, the next sentence there talks about a written.

[00:22:01] Speaker 03:
And July 31st is when the union submitted a barting demand to renegotiate the entire expired contract, because one element that kind of

[00:22:13] Speaker 03:
is not as heavily discussed in the brief, but comes through in the decision and orders that a lot of what was going on here was being driven by the fact of, oh, we're not going to have any more employees.

[00:22:24] Speaker 03:
Oh, now we are.

[00:22:25] Speaker 03:
Things, you know, the state court litigation kept postponing the potential closure of this facility.

[00:22:32] Speaker 03:
So once it became clear that it was not going to close on May 22nd,

[00:22:39] Speaker 03:
And then we finally, by July, the union made the decision to submit a full written bargaining demand.

[00:22:46] Speaker 03:
And part of that was a request for information to renegotiate the contract.

[00:22:50] Speaker 03:
Because at that point, I guess it became clear to at least the union that StaffCo was going to continue to have employees into the future.

[00:22:59] Speaker 04:
But here's the problem.

[00:22:59] Speaker 04:
Here's the problem.

[00:23:01] Speaker 04:
I mean, if we want to say that the board obviously knows the difference between a written request and an unwritten request,

[00:23:10] Speaker 04:
and they used the word written request in the subsequent sentence, then how are we supposed to read the first sentence of the paragraph that says that the union did not request a bargain with Staff Co.

[00:23:24] Speaker 04:
between May 22nd and July 31st?

[00:23:28] Speaker 03:
Your Honor, I think that what she was testifying to there was a question of they had not made a request to bargain about the entire contract.

[00:23:37] Speaker 04:
Not about this particular continuation of pension fund contribution.

[00:23:43] Speaker 03:
Correct, correct.

[00:23:43] Speaker 03:
That, I believe, is what she is testifying to there, and certainly her looking, you know, reading her own testimony entirely in the rest of the decision here allays, I think, any concern that maybe that might have been inartfully stated, that certainly when you read those two sentences, July 31st is talking about the demand to negotiate an entire new successor agreement.

[00:24:06] Speaker 03:
which the parties had been presumably holding off on doing because it seemed like StaffCo would have no employees, so it would move the question.

[00:24:14] Speaker 03:
Then on July 31st, when it becomes clear that StaffCo is at least going to have these four employees, maybe not indefinitely, but into the future, the union then requested

[00:24:25] Speaker 03:
negotiations for an entire new successor agreement and I believe including on this issue about pension contributions.

[00:24:32] Speaker 03:
So I don't certainly do not read that as the company would urge that that is the board they're saying in contravention to the other parts of the decision in the analysis that there in fact had been a demand on May 20th and then certainly there's the follow-up on July 9th.

[00:24:52] Speaker 04:
So the board and the ALJ both seemed to find that there was a demand, a request for bargaining at that May 20th meeting.

[00:25:04] Speaker 03:
Yes, Your Honor, yes, Your Honor.

[00:25:05] Speaker 04:
Friend on the other side says that that's essentially an erroneous finding based on board precedent and our precedent.

[00:25:13] Speaker 04:
Would you respond to that?

[00:25:16] Speaker 03:
I think as we lay out in our brief, Your Honor, respectfully, the board very strongly disagrees that

[00:25:22] Speaker 03:
As we lay out on the brief, there's no requirement that a demand for bargaining be made in writing.

[00:25:27] Speaker 03:
Oral one is fine.

[00:25:29] Speaker 03:
You look at the context in which it was made.

[00:25:32] Speaker 03:
You see if the other side understood

[00:25:36] Speaker 03:
what was being asked of them.

[00:25:38] Speaker 03:
You look at the cases where you're talking about protest or just complaining, and here you have, and again, this was, at this point, a routine.

[00:25:49] Speaker 03:
The parties understood what was going on.

[00:25:51] Speaker 03:
This was the fifth, sixth time.

[00:25:53] Speaker 05:
Can you boil it down to one sentence that says what the demand for bargaining was, the evidence was, upon which they could be said to find him?

[00:26:03] Speaker 05:
From Smith?

[00:26:05] Speaker 05:
From the record, July 9th or the other day at either one, what's the best evidence you've got that there was a demand for bargaining?

[00:26:13] Speaker 03:
The demand for bargaining would be based on the fact that it's two parties.

[00:26:19] Speaker 05:
Are you having a hard time boiling it down to one side?

[00:26:21] Speaker 03:
No, Your Honor.

[00:26:22] Speaker 03:
It's stay current on the contributions.

[00:26:27] Speaker 03:
So the notice is we're not gonna sign another agreement.

[00:26:31] Speaker 03:
It's stay current and sign another extension.

[00:26:34] Speaker 03:
So you not only have a demand, stay current here.

[00:26:37] Speaker 05:
Is that a demand for bargaining or is that a complaint about if you're not doing what you ought to be doing?

[00:26:42] Speaker 03:
Well, you're onto this, this might be a different case if it was don't stop paying and that was about it.

[00:26:50] Speaker 03:
But here we have stay current, which the parties, everyone understood what that meant.

[00:26:56] Speaker 03:
Certainly there's no contesting that that was not understood.

[00:26:59] Speaker 03:
And then we actually have a proposal.

[00:27:01] Speaker 03:
And certainly this is not a case of an initial, a newly certified union where they communicate to an employer, you know, the hundreds of terms they want to talk about.

[00:27:12] Speaker 03:
Here, the issue that the demand goes to what the notice was.

[00:27:18] Speaker 03:
And it was, we're not going to sign another one of these.

[00:27:21] Speaker 03:
So the demand is stay current, keep making the pension contributions, honor the status quo, and you in fact have a little bit, you have the icing on the cake, which is an actual proposal.

[00:27:34] Speaker 03:
Sign another extension or interim agreement.

[00:27:39] Speaker 03:
And at that point, some of their other arguments kind of go to an issue that they're just not talking about, which is then whether there was good faith bargaining.

[00:27:51] Speaker 03:
their affirmative defense is just there was no demand and they talk about explicit or implicit and the board here the question really is is there a qualified or is there a demand is what was said qualify as a bargaining demand and certainly he did not say I hereby demand that you bargain with us

[00:28:14] Speaker 03:
And I don't think the act and board law certainly requires something that detailed.

[00:28:20] Speaker 03:
And counsel talks about prime services, but there the court says in all the things he cited, such as those type of things.

[00:28:30] Speaker 03:
And the court in prime services I don't think was limiting it to, it has to be, these are the type of things that count as indicia.

[00:28:38] Speaker 01:
And does it make a difference in terms of the

[00:28:42] Speaker 01:
reasonableness of the ALJ's reading of the facts here that this is not, you know, the UAW at the height of General Motors function with thousands and thousands of employees.

[00:28:54] Speaker 01:
We're talking about maybe a relatively informal situation with four employees being covered for half a year.

[00:29:03] Speaker 01:
It's a relatively small

[00:29:06] Speaker 01:
situation with people who have dealt with one another quite a bit.

[00:29:12] Speaker 01:
Does that make any difference?

[00:29:14] Speaker 03:
No, I don't think so.

[00:29:15] Speaker 03:
Certainly after, so this May 20th meeting was about the big layoff that was going to be coming.

[00:29:22] Speaker 03:
My recollection of the record is

[00:29:24] Speaker 03:
39 employees continued on for several more weeks or months and then we get to the point where I Would leave it to intervene or to I guess speak about extra record evidence But it continued up and through the decision in order.

[00:29:39] Speaker 03:
It still had these four people working at

[00:29:43] Speaker 03:
these school-based, so it still has four employees, and it might have them till today.

[00:29:50] Speaker 03:
So you basically have four employees, and certainly a small unit, but it's not a unit of one, so it still qualifies, who have been working without their pension at this point.

[00:30:03] Speaker 03:
And so I don't think it makes that difference.

[00:30:06] Speaker 01:
And certainly there were- And they had a new agreement?

[00:30:07] Speaker 01:
I thought they had a new agreement as of, as of December, so it picks back up.

[00:30:13] Speaker 03:
as of December of?

[00:30:15] Speaker 01:
The same year, 2014.

[00:30:20] Speaker 01:
I'm sorry, maybe this is better for intravenous.

[00:30:22] Speaker 03:
It might be better in terms of where the parties are now.

[00:30:26] Speaker 01:
So back on your sweet spot, can you help me distinguish Oak Harbor?

[00:30:36] Speaker 03:
How this case is not Oak Harbor?

[00:30:39] Speaker 03:
Yeah.

[00:30:41] Speaker 03:
Well, I think

[00:30:43] Speaker 03:
So our, Oak Harbor, I wanna make sure I have the language in front of me.

[00:30:50] Speaker 03:
Oak Harbor talks about, and the language there is that, upon the expiration of the CBA, which required contributions, the employer, in that case, agreed to contribute them until such time as it notified the union in writing with a copy of its trust of its intent to cancel such obligation.

[00:31:11] Speaker 03:
So there we have language in either the pension agreements or trusts, whatever the operative document there was called.

[00:31:19] Speaker 01:
I think it was a trust subscription agreement.

[00:31:21] Speaker 03:
A trust subscription agreement, yes.

[00:31:23] Speaker 03:
So there we have, as the board found, something that clearly and unmistakably indicated to the parties that in that case, provided it gave the notice and complied with that, that an employer could

[00:31:40] Speaker 03:
cancel such obligation.

[00:31:43] Speaker 03:
And what is the obligation referring to?

[00:31:44] Speaker 03:
It's referring to its bargaining agreement, post-expiration bargaining agreement obligation to provide pension contributions in that case.

[00:31:58] Speaker 03:
And I think as this court

[00:32:03] Speaker 03:
Recognized in enforcing the board's decision in that case against the union's petition that when you're looking at this language.

[00:32:13] Speaker 03:
in to see if it satisfies this Cawthorn test of clear and unmistakable waiver you're looking for language that talks about the employer being authorized to essentially act unilaterally with regards to the status quo post expiration and is that language allowing the employer to act unilaterally with regards to changing that status quo to to alter it in some way and respectfully

[00:32:44] Speaker 03:
The language that we have in this case is not O'Carver.

[00:32:48] Speaker 03:
It is not Cawthorn, despite the protestations of council.

[00:32:55] Speaker 03:
And I think.

[00:32:56] Speaker 01:
And is that because it doesn't say that it may cancel?

[00:33:08] Speaker 01:
I mean, the difference is it actually feels somewhat parallel.

[00:33:12] Speaker 01:
As StaffCo argues, in this case, the employer's participation in and status as an employer under the fund shall forthwith terminate.

[00:33:26] Speaker 01:
The service of such employer's employees shall no longer be credited under the plan.

[00:33:31] Speaker 01:
Then there's a written notification that the employer is no longer maintaining the plan and that the covered employment

[00:33:41] Speaker 01:
of the employees terminated.

[00:33:42] Speaker 01:
And so I take it from what you just said that I had thought that you were hanging your hat on the difference between participation and obligation, but it sounds like you are hanging your hat on the affording of the employer of an ability unilaterally to express an intent to cancel.

[00:34:08] Speaker 03:
Certainly, if you're trying to do a chart of which cases fall on which side, often the language that the board law looks to is the language that the party is urging satisfies clear and unmistakable.

[00:34:25] Speaker 03:
Does it talk about the employer's obligation or duty to whatever the issue is?

[00:34:31] Speaker 03:
And does that language talk about them being able to act unilaterally with regards to it?

[00:34:36] Speaker 03:
The language here does not talk about the employer being able to do anything.

[00:34:41] Speaker 03:
This language in the continuation policy talks about what the trust is going to do to the employer

[00:34:49] Speaker 03:
But it doesn't talk about, I mean, certainly I could, we could tinker with this language a million different ways to hypothetically get it over the hump by inserting, you know, deleting sentences, but respectfully, it's the board found, and I think reasonably,

[00:35:09] Speaker 03:
that it is not Cawthorn, it is not Ocarber, and maybe it's one shade of gray away from all the cases that they say are completely distinguishable.

[00:35:22] Speaker 01:
I guess I'm asking you to zoom into a little bit of a lower level of specificity and say where you see, and I know we're in a deferential

[00:35:31] Speaker 01:
Well, actually, we're not.

[00:35:33] Speaker 01:
We're in a de novo review.

[00:35:34] Speaker 03:
Correct, on the contract history.

[00:35:37] Speaker 01:
So zoom in and say, what it is you think that distinguishes this?

[00:35:42] Speaker 01:
Because unlike in Oak Harbor, in Cawthorn, there wasn't a discussion of the employer's ability unilaterally to express its intent to cancel.

[00:35:54] Speaker 01:
It just talked about the obligation shall terminate.

[00:35:57] Speaker 01:
And here, it's participation that terminates.

[00:36:01] Speaker 01:
Again, I'm just trying to, and I realize there's many variations out there, but here we have a couple.

[00:36:09] Speaker 01:
And we've pretty recently decided in Oak Harbor that something that sounds an awful lot like this was a termination.

[00:36:19] Speaker 01:
And so help me out.

[00:36:21] Speaker 03:
Well, yes, Your Honor.

[00:36:25] Speaker 03:
Again, what I would come back to is

[00:36:28] Speaker 03:
that although not necessarily requiring the word obligation, but maybe in a logic class you could make that inferential leap.

[00:36:39] Speaker 03:
And under some other standard judging, you know, does this language indicate something?

[00:36:45] Speaker 03:
But when we're talking about is it clear and unmistakable,

[00:36:49] Speaker 03:
without having, without talking about the employer's obligation, and where's that obligation deriving from?

[00:36:57] Speaker 03:
It's deriving from the collective bargaining agreement, and because that's expired, it's deriving from statutory laws and obligation, that it's certainly,

[00:37:09] Speaker 03:
There's no question that this language isn't unclear.

[00:37:13] Speaker 03:
But it's clear to an entirely separate question, which is, what will the pension plan do to this employer?

[00:37:21] Speaker 05:
And so if the CBA requires funding through this pension plan, isn't that the same thing?

[00:37:29] Speaker 05:
How can you divorce what the pension plan will do from what the obligation or participation is after the CBA is expired?

[00:37:39] Speaker 03:
Well, it's only divorced in the sense, Your Honor, that the status quo was a pension benefit in the company contributing to this pension plan.

[00:37:53] Speaker 05:
A particular pension benefit through a particular trust.

[00:37:55] Speaker 05:
Yes, it was named in the... It's specified in the CBA.

[00:37:59] Speaker 03:
Yes, it was named in the CBA.

[00:38:01] Speaker 05:
And then, so they certainly... Then why isn't it extremely relevant what the plan will do in the

[00:38:09] Speaker 03:
I mean, it certainly is relevant, but whether that language is a clear and unmistakable waiver of the union's right to bargain about the employer acting

[00:38:27] Speaker 03:
you know, acting once it stopped signing these things.

[00:38:31] Speaker 03:
You know, what was the union obligated, or what was the union right at that point?

[00:38:35] Speaker 03:
And that was for the company to come to them and to bargain about what would happen next if they weren't going to maintain the status quo.

[00:38:44] Speaker 03:
I see I'm very far over my time, Your Honors.

[00:38:48] Speaker 03:
Unless there are any further questions, the board respectfully requests enforcement.

[00:39:01] Speaker 02:
Good morning, Your Honors.

[00:39:02] Speaker 02:
Richard Seltzer of Cone West and Simon for Intervener, New York State Nurses Association, known as NISNA in Parland.

[00:39:09] Speaker 02:
So I'd like to pick up just where the Court and Council for the NLR be ended.

[00:39:13] Speaker 02:
I think the distinction between Cawthorn Oak Harbor and here

[00:39:17] Speaker 02:
One is the language addresses the right of the employer.

[00:39:23] Speaker 02:
And in the other here, the language addresses the right of a third party.

[00:39:27] Speaker 02:
And that is what the court, what the board and the courts have distinguished.

[00:39:31] Speaker 02:
In fact, this court's own decision

[00:39:35] Speaker 02:
in oak harbor stated in reviewing what the board's case law in this area was stated they will find a waiver only and that's this court's phrase only when there's explicit contract language authorizing an employer

[00:39:52] Speaker 02:
to cancel its obligations.

[00:39:54] Speaker 02:
And that's at 855 at 3rd, at 441 to 442.

[00:39:59] Speaker 02:
So the way this own court has described the board's case law requires that the language go to the employer's obligation rather than to a third party's rights.

[00:40:12] Speaker 02:
And following up questions that Judge Pollard asked earlier, and I think that go to this issue and the possibility issue and a number of other issues,

[00:40:21] Speaker 02:
The board has considered situations where the language of the contract states the contributions will go to Fund A. And for various reasons, Fund A will not take the contributions.

[00:40:36] Speaker 02:
The union changed, the employer only wants to give the old rate of contributions, and the fund will not take the new rate.

[00:40:45] Speaker 02:
In those cases, Christopher Street owners, cited in our brief, and Clear Pine Molding, cited in our brief, the court, the board did not hold, throw up its hands and say, oh, well, the language says it'll go to that fund, so the employer gets to keep the money.

[00:41:00] Speaker 02:
And the employees here, the nurses, get no benefit from the part of the contract that was devoted to pension benefits.

[00:41:08] Speaker 02:
In each of those, it said they had to give notice, they had to bargain with the union,

[00:41:13] Speaker 02:
And there might be alternative ways of providing the benefits, even though the contract language talked about one fund.

[00:41:21] Speaker 01:
So I think this is actually very helpful in the sense that, yes,

[00:41:27] Speaker 01:
In the absence of any further action, the term of the bargaining agreement here terminates the employer's participation in the fund, the employee's service is not going to be credited to the plan, the employer is not going to maintain the plan, but that is not the same

[00:41:43] Speaker 01:
as saying, and actually this is off the table as a matter for future.

[00:41:48] Speaker 02:
The employer is home free, doesn't have to do anything.

[00:41:51] Speaker 01:
So without bargaining on it, yeah, the thing dies on the vine.

[00:41:55] Speaker 01:
But the question is whether it's gone that one step further that the board found and reaffirmed in Oak Harbor

[00:42:04] Speaker 01:
to the point of saying, and this is off limits as a subject for further discussion.

[00:42:09] Speaker 02:
Correct, and I think the board's case law and the cases I just cited about the change of the fund reflects that it's not off the board.

[00:42:16] Speaker 02:
I want to address very quickly one or two of the other points raised by counsel beforehand in the court.

[00:42:23] Speaker 02:
Staffco makes it sound like at the May 20th meeting was an offhand comment at the water cooler to the Staffco's Director of Technology, ah, you know, we really don't like the fact that you're doing such and such.

[00:42:36] Speaker 02:
That's not what happened here.

[00:42:37] Speaker 02:
And Judge Pollard, I do think the course of dealings between the parties is relevant and actually it supports the board's decision.

[00:42:44] Speaker 02:
These parties for a year had been dealing with uncertainty, and the way they dealt with that is the union would say, we want you to stay current, we want you to sign an agreement, and the company would do it.

[00:42:57] Speaker 02:
That's exactly what they did on May 20th.

[00:42:59] Speaker 02:
That's exactly what they did on July 9th.

[00:43:02] Speaker 02:
They didn't say, we don't like this.

[00:43:04] Speaker 02:
They said, we want you to sign this agreement.

[00:43:07] Speaker 02:
And the staff knew exactly what was being said, because that's what they had been doing for over a year and a half.

[00:43:14] Speaker 02:
And I might say, in one of the cases we cited, Imperial House Condominiums 279 LRB 1225, a union requested that instead of contributing, we keep getting back to this, instead of contributing to Plan A, we'd like you to contribute to Plan B.

[00:43:32] Speaker 02:
And the board concluded that was a proposal, but that was a request to bargain because it was a bargaining proposal.

[00:43:40] Speaker 02:
And giving the other side a bargaining proposal is a request to bargain.

[00:43:45] Speaker 02:
In the Indian River case, which we also cite, 340 LRB 467, the employer said, we're going to do such and such.

[00:43:54] Speaker 02:
And the union said, that's a mandatory subject of bargaining.

[00:43:57] Speaker 02:
And the board said, that's enough.

[00:43:59] Speaker 02:
You don't have to say we want to bargain because it is saying it's a mandatory subject.

[00:44:04] Speaker 02:
That's the way parties communicate in the real labor relations area.

[00:44:08] Speaker 02:
And that's exactly what happened here.

[00:44:11] Speaker 05:
I want to go too far beyond the record, but has anybody ever said in this?

[00:44:16] Speaker 02:
No, it was, and that's frankly another reason why the union wanting these agreements was, there was a reason for that.

[00:44:25] Speaker 02:
Because if you have an agreement, it eliminates the question of impasse.

[00:44:30] Speaker 02:
Staff go at times below raise the question of impasse, and then withdrew the question of impasse.

[00:44:36] Speaker 02:
And as I'm sure you're on a nose, it's a difficult area impasse.

[00:44:40] Speaker 02:
And if you have a written agreement and a written extension, it eliminates any confusion about that.

[00:44:45] Speaker 02:
And finally, I think, Judge Santel, your question about did the company attempt to make the contribution was a telling question, and the answer is no.

[00:45:00] Speaker 02:
The company didn't want these contributions.

[00:45:02] Speaker 02:
I mean, I understand why.

[00:45:03] Speaker 02:
They didn't want contributions accepted, so they didn't want to make the contribution.

[00:45:07] Speaker 02:
And let me just point out four factors that go into why it's not clear how the fund would react to these circumstances.

[00:45:15] Speaker 02:
And of course, Staffco did not call any representative of the fund at the hearing, so there's no evidence, and it's their burden.

[00:45:22] Speaker 02:
The first contract extension agreement, which is at the record at 383, was reached 90 days after expiration of the prior agreement.

[00:45:34] Speaker 02:
It's not supposed to happen.

[00:45:35] Speaker 02:
You're only supposed to have a 60-day cure period.

[00:45:38] Speaker 02:
It happened.

[00:45:38] Speaker 02:
There's no explanation in the record, but that's what happened with the first agreement, which might have led Ms.

[00:45:45] Speaker 02:
Green and Mr. Smith to conclude they weren't so sure that the fund would not accept these contributions.

[00:45:53] Speaker 02:
And one last thing I'll say about the fund.

[00:45:55] Speaker 02:
Like many institutions,

[00:45:57] Speaker 02:
They have rules, but they welcome repented sinners.

[00:46:01] Speaker 02:
And that's exactly what this fund did by having a provision.

[00:46:06] Speaker 02:
And there aren't even particular requirements for it to be readmitted.

[00:46:12] Speaker 02:
Section 2.03 of the policy, which is at the record at 188, says an employer whose status as an employer has been terminated may be admitted as an employer

[00:46:25] Speaker 02:
According to such terms and conditions as the trustees decide, no one knows whether the contributions would have been accepted or not because the contributions were not offered.

[00:46:39] Speaker 02:
We would urge the court to enforce the board's decision.

[00:46:42] Speaker 02:
Thank you.

[00:46:43] Speaker 01:
Thank you.

[00:46:44] Speaker 01:
Mr. Breiter, we said we'd give you a couple of minutes of rebuttal, even though we used up all your time with lots of questions.

[00:46:51] Speaker 06:
Thank you, Your Honor.

[00:46:52] Speaker 06:
If I may, just briefly to Judge Wilkin's point about JA 516 and part of the ALJ's decision that said Michelle Green contacted Brian Clark,

[00:47:03] Speaker 06:
over ten times.

[00:47:05] Speaker 06:
If you look to the citation in the administrative law judge's sentence there on JA 516, he's citing page 80 of the transcript, which is on Joint Appendix page 35.

[00:47:15] Speaker 06:
If you look to line 18 on that page, Michelle Green gave that testimony in response to a question about what the parties did after the very first CBA expired in 2012.

[00:47:28] Speaker 06:
That is when she said they spoke approximately 10 times, that she and Mr. Clark spoke approximately 10 times.

[00:47:35] Speaker 06:
She's talking about things that happened before the expiration of the final collective bargaining agreement in 2014.

[00:47:41] Speaker 06:
She's not referring to a supposed 10 times that she and Mr. Clark talked over the summer of 2014 when the final CBA expired.

[00:47:51] Speaker 06:
And neither the board nor the union have taken that position as a factual matter in their briefs.

[00:47:56] Speaker 06:
Secondly, the employer in Cawthorn Trucking did not have a right to unilaterally cancel post-contract pension benefits, yet the board still found a waiver in that case.

[00:48:10] Speaker 06:
Oak Harbor doesn't really speak one way or the other.

[00:48:12] Speaker 06:
It's kind of an opposite to this case.

[00:48:14] Speaker 06:
Cawthorn Trucking, though,

[00:48:16] Speaker 06:
is very relevant.

[00:48:18] Speaker 06:
And like the language in Cawthorn Chalking, the language in this case speaks to what happens upon the expiration of the CBA, but it can't be read in isolation because the bargain for document here, the collective bargaining agreement,

[00:48:31] Speaker 06:
says that you have to make contributions into the Knysna Pension Plan and that the Knysna Pension Plan is the last authority on all things pension related.

[00:48:41] Speaker 06:
The parties said we are going to follow the Knysna Pension Plan rules.

[00:48:45] Speaker 06:
That is in their contract and the significance of that cannot be overstated.

[00:48:51] Speaker 06:
And finally, Your Honors, remember this is a failure to bargain case.

[00:48:55] Speaker 06:
That's the allegation here.

[00:48:57] Speaker 06:
And when there was finally an actual demand made, because the board and the union skip over that.

[00:49:03] Speaker 06:
They really skip over how it was on the union as a matter of law to make their bargaining demand known.

[00:49:08] Speaker 06:
And on July 31st, when there was finally a bargaining demand made, my client, Staffco, showed up at the table.

[00:49:15] Speaker 06:
They said, sure, you want information?

[00:49:18] Speaker 06:
Here's your response to your request for information.

[00:49:20] Speaker 06:
You want a bargain?

[00:49:21] Speaker 06:
Sure, let's show up and bargain.

[00:49:22] Speaker 06:
And they made a good faith offer for an alternative retirement benefit, a 403B plan.

[00:49:28] Speaker 06:
It's in the record.

[00:49:29] Speaker 06:
It was rejected out of hand.

[00:49:30] Speaker 06:
The union never made any type of counteroffer.

[00:49:34] Speaker 06:
It just repeated its demand that pension fund contributions resume in the NISMA pension plan, but the parties were able to reach an agreement on health benefits.

[00:49:42] Speaker 06:
This is a failure-to-bargain case, and StaffCo bargained when a demand was actually made.

[00:49:53] Speaker 01:
Ongoing status of the pension benefits of these employees is governed by the board's decision here.

[00:49:59] Speaker 01:
They don't have a new superseding term for pension.

[00:50:03] Speaker 01:
No new superseding term in the collective bargaining agreement.

[00:50:06] Speaker 06:
No, there's no pension benefit at the moment.

[00:50:09] Speaker 05:
There's no CBA at the moment.

[00:50:12] Speaker 06:
Correct.

[00:50:12] Speaker 06:
The last discussion about pension benefits was about retirement benefits, I should say, which is related, of course, was StaffCo's offer to create a defined contribution plan under 403B, and that was rejected out of hand.

[00:50:26] Speaker 06:
Again, when there was a bargaining demand finally made, StaffCo showed up.

[00:50:29] Speaker 06:
That's the alleged violation here of Section 8A5 and 1.

[00:50:32] Speaker 06:
And for that reason and all the reasons stated, we respectfully request that this court grant the petition for reveal.

[00:50:40] Speaker 06:
Thank you, Your Honors.

[00:50:41] Speaker 01:
Thank you very much.