[00:00:00] Speaker 02:
Case number is 17-1065 at HAL, T-Mobile USA, Inc.

[00:00:05] Speaker 02:
Petitioner versus the National Labor Relations Board.

[00:00:09] Speaker 02:
Mr. Theodore for the petitioner.

[00:00:58] Speaker 00:
Good morning.

[00:01:06] Speaker 00:
Good morning, Your Honor.

[00:01:07] Speaker 00:
May it please the Court, my name is Mark Theodore.

[00:01:09] Speaker 00:
I represent T-Mobile USA in this matter.

[00:01:12] Speaker 00:
This is a textbook example of an NLRB decision that is not the product of recent decision making, given that the agency does not engage in traditional rulemaking normally and instead hands down

[00:01:27] Speaker 00:
its rules of law by decision.

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It's of paramount importance that the agency explain the reasons for its decisions taking into consideration the existing law and the facts before.

[00:01:37] Speaker 03:
Well, they did cite the Levitz case.

[00:01:40] Speaker 00:
They did, and they actually also specifically said, Your Honor, that this situation here, the suspension of bargaining, was not addressed by Levitz.

[00:01:49] Speaker 03:
Yes, but my point was you say they didn't explain why they came up with these things.

[00:01:54] Speaker 03:
I mean, Levitz, they went on at some length to explain

[00:01:57] Speaker 03:
the policies the board was adopting.

[00:02:01] Speaker 03:
And it cited some other of its precedent as well.

[00:02:04] Speaker 03:
So where it has precedent, it doesn't have to write a book, does it?

[00:02:08] Speaker 00:
No, it doesn't have to write a book, Your Honor.

[00:02:10] Speaker 00:
But I think in this case, you'll see that when they went from explaining the principles of Levitt to the rule, they didn't analyze or even cite any other law.

[00:02:23] Speaker 00:
So yes, they don't have to write a book.

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But they do have to explain what the reasoning is for the rule.

[00:02:29] Speaker 03:
Well, didn't they go into great length as to why as members of the board, they were coming up with this, what I'll call the either or alternative.

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And your client has offered

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a reason why the board, if I can put it this way, should reconsider that approach for the reasons it argues.

[00:02:58] Speaker 03:
And the board said, you know, we're sticking with the policy we had, that we're balancing different interests

[00:03:06] Speaker 00:
But that's the point of the appeal, Your Honor.

[00:03:09] Speaker 00:
This rule came out of nowhere.

[00:03:12] Speaker 00:
If you look at all of the decisions on this case, there is no either or.

[00:03:17] Speaker 00:
Levitz explains a specific set of circumstances in which the employer can withdraw recognition.

[00:03:23] Speaker 03:
Are we talking about the same case?

[00:03:24] Speaker 03:
This is where the employer was confronted with a statement by, what was it, 20 out of 21 employees?

[00:03:31] Speaker 00:
Levitz, or in our case, we had 13 of 20.

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13 and 20.

[00:03:37] Speaker 03:
and your client decided he was going to continue to recognize the union for some purposes, but suspend all bargaining, right?

[00:03:48] Speaker 00:
Suspend in-person bargaining, that's correct, Your Honor.

[00:03:52] Speaker 03:
In-person bargaining.

[00:03:54] Speaker 03:
Yes.

[00:03:55] Speaker 03:
Suspend all bargaining as to the new collective bargaining agreement.

[00:04:01] Speaker 00:
As to a successor collective bargaining agreement, that is correct, Your Honor.

[00:04:05] Speaker 00:
And the reason we did it is because there was nothing up until this point in any case law that suggested that you must do one thing or you must act on it.

[00:04:19] Speaker 02:
But there are cases that suggest... No, the case law was you must do one of two things.

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You must either withdraw recognition, in which case you don't have to bargain, or you must recognize the union, or if you recognize the union, you must bargain.

[00:04:37] Speaker 02:
Those are the options up till this point, aren't they?

[00:04:39] Speaker 02:
And the board said, okay, there are these two cases.

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What are they?

[00:04:46] Speaker 02:
Lexis of Concord.

[00:04:48] Speaker 02:
And one of the principles that we operate under is we owe deference to the board's interpretation also of its own case law.

[00:04:55] Speaker 02:
So on that case, the board says, well, that was a different situation.

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It was a temporary, there were other mitigating circumstances that didn't exist here.

[00:05:07] Speaker 02:
And it's hard for me to see how with this deferential standard on which we operate that we can get where you want us to go.

[00:05:17] Speaker 00:
I understand that and I think that the full body of case law in this area though, and we cite it in the brief and the board in fact cites some of it in their brief, suggests that it has never been an either or situation and that

[00:05:33] Speaker 00:
that show industries for example is an example.

[00:05:37] Speaker 02:
But the board says that's a completely different case because you know the employer went out of business there and that was a unique situation but when you look at you know everything from Allentown Mac to Levitt it seems to be that this is a pretty clear rule the board has.

[00:05:54] Speaker 00:
Yeah, I would suggest to you, if you look at Osceolo Ironworks, which the board cites for different purposes in its brief, that suggests that there are pathways that the- What happened in that case?

[00:06:09] Speaker 00:
In that case, the employer had evidence that the union has lost majority status, but had it off- Is this the case of the board cites?

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I'm sorry?

[00:06:18] Speaker 00:
The board cites this case?

[00:06:20] Speaker 00:
The board cites this case for a different reason, but in that case, it had an offer out to the union for a complete contract.

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The union accepted the offer and the employer then withdrew recognition.

[00:06:35] Speaker 00:
The board initially ruled that, well, you can't do that because you reached an agreement.

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You can't withdraw a recognition once you have an agreement.

[00:06:44] Speaker 00:
They didn't explain their decision.

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It went back.

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It was remanded.

[00:06:47] Speaker 00:
Isn't that true?

[00:06:48] Speaker 00:
I'm sorry?

[00:06:48] Speaker 00:
There wasn't an agreement here.

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The collective bargaining agreement here expired.

[00:06:55] Speaker 00:
Exactly.

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So it was a different kind of case than that.

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There was no new agreement.

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But if you correct, Your Honor, except that in discussing the Brightline rule in Osceola, Justice Souter laid out three options.

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to that are all lesser path that don't involve withdrawal of recognition and that in with all go to withdrawing the proposals to reach an agreement the first option he said was you withdraw your your proposal

[00:07:26] Speaker 00:
for an agreement and then you file a petition.

[00:07:28] Speaker 00:
Okay, and then naively perhaps they dropped a footnote that said that withdrawal of the proposal wouldn't serve the basis, we presume it wouldn't serve as a basis to block an election.

[00:07:43] Speaker 00:
Okay, the second option is withdraw your proposal and just don't bargain anymore.

[00:07:50] Speaker 03:
So why didn't you cite that case?

[00:07:52] Speaker 00:
We because we felt the whole of the decisional law was not a bright line.

[00:07:58] Speaker 00:
I mean, we didn't cite all the cases.

[00:08:00] Speaker 03:
That's the Supreme Court.

[00:08:01] Speaker 00:
It is the Supreme Court, Your Honor.

[00:08:03] Speaker 00:
And the third option was, withdraw your proposal and investigate the situation.

[00:08:11] Speaker 00:
And we took a path that was right in between options two and three.

[00:08:15] Speaker 00:
And option one had already been taken by the employees.

[00:08:18] Speaker 03:
Well, the board, though, at least it put everyone on notice.

[00:08:25] Speaker 03:
You can go different routes, but you do so at your own risk.

[00:08:29] Speaker 00:
Exactly.

[00:08:30] Speaker 00:
And that's one of the reasons exactly, Your Honor, why we took this lesser path, because when you fully explore all the facts in this case, you know that the employer

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believes and has asserted repeatedly that the charges that were blocking the petition were absolutely frivolous.

[00:08:49] Speaker 03:
And I think- Is that what the board held?

[00:08:53] Speaker 00:
No.

[00:08:54] Speaker 00:
But my point is this.

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I've been asserting that- I understand the employer's position, but since this is management rights, I can amend the employee handbook whenever I want to and to say anything I want to.

[00:09:05] Speaker 03:
But the board didn't say the unfair labor practices filed were frivolous.

[00:09:12] Speaker 00:
Well, Your Honor, I think I would submit to you that they did not say that, you're right, but I would submit to you that if you read the collective bargaining agreement, which is at joint appendix 247, you would understand that there is no way that those charges should have blocked anything.

[00:09:31] Speaker 01:
How long this one can I ask just a factual question if I'm right about that?

[00:09:35] Speaker 01:
Am I correct that there is a decertification petition seeking election pending before the board?

[00:09:41] Speaker 00:
Yes, there is, Your Honor.

[00:09:42] Speaker 01:
How long has that been pending?

[00:09:44] Speaker 00:
Since March of 2014.

[00:09:46] Speaker 01:
And the Board could have updated all of this back in the petition, right?

[00:09:52] Speaker 00:
Absolutely, Your Honor.

[00:09:53] Speaker 00:
They had the discretion to move forward, and that is exactly my point.

[00:09:57] Speaker 00:
They could have looked at the agreement, which said that any policy that was conflicting was trumped by the

[00:10:08] Speaker 00:
collective bargaining agreement and that's just never been considered by anybody going up through this.

[00:10:16] Speaker 00:
The judge, as you know, found there was just no change because the at-will employee policy had appeared in the handbook several times before that and that materially there were no other changes.

[00:10:28] Speaker 00:
However, the essence of the board's argument was twofold.

[00:10:32] Speaker 00:
One was that it

[00:10:33] Speaker 00:
Altered the collective bargaining agreement, which manifestly was just not true objectively not true and in the second item was that that by issuing an at-will Statement the The employer was demonstrating to its employees that Union was futile but that is

[00:11:00] Speaker 00:
First of all, no one has ever cited a case to me that suggests that that's true.

[00:11:04] Speaker 03:
That doesn't... That's why Congress set up the board.

[00:11:08] Speaker 03:
So these people who have some expertise in this area can make these evaluations.

[00:11:13] Speaker 00:
You're absolutely right, Your Honor, except for one thing, and this is why the record is very, very important.

[00:11:19] Speaker 00:
the petition for decertification was filed after the charge.

[00:11:24] Speaker 00:
By definition, it could not have, if that was true, the regional director could have said, well, as a legal matter, I'm taking the position that it interfered with employees who were signing these petitions and filing decertification petitions, no more decertification petition.

[00:11:47] Speaker 03:
Well, what was interesting to me, among other things in this case, was that the pendency of these unfair labor practices, charges, regardless of their merit, were blocking the special election which the employer had, as I understand the record, said he was ready to participate in.

[00:12:13] Speaker 00:
And we would abide by whatever results occurred.

[00:12:17] Speaker 03:
So because of that, what I was looking for was some case where the board had dealt with that problem.

[00:12:23] Speaker 03:
In other words, the employer says, I've got some indication that the union has lost its majority status.

[00:12:31] Speaker 03:
The board has said the preferred way is a special election.

[00:12:34] Speaker 03:
Let's have a special election.

[00:12:37] Speaker 03:
But then you can't do that because there

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on fair labor practices pending.

[00:12:45] Speaker 03:
And I understand why in some circumstances that would taint what was going on.

[00:12:53] Speaker 03:
But I didn't see that in this particular case.

[00:12:57] Speaker 00:
That's exactly right, Your Honor.

[00:12:58] Speaker 00:
There's never been an allegation that anything, the decertification petition or the petition that was handed to my client,

[00:13:06] Speaker 00:
had any taint to it whatsoever.

[00:13:09] Speaker 00:
In fact, that's one of the reasons the board came down so strongly, I believe, to say, well, you could have just withdrawn.

[00:13:17] Speaker 00:
But when you're looking at it from the perspective of an employer, when you have charges like that,

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that are still pending, the risk becomes tremendous.

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Even if you believe they're frivolous, which we did, and even if we believe that we ultimately would prevail in our defense.

[00:13:38] Speaker 00:
And that's exactly one of the things that T-Mobile took into consideration in this case, is that Leavitt says, if you withdraw recognition, you do so at your peril.

[00:13:51] Speaker 00:
The board, in its brief, even acknowledges that it's a, quote, grave, end quote, decision to do it.

[00:13:58] Speaker 00:
So we just took a lesser path, one of which we believe is not actively endorsed, but certainly evident in all

[00:14:08] Speaker 00:
of the decision of law on this, including the Supreme Court decisions on it, that there's a recognition that at some point you have this information.

[00:14:20] Speaker 00:
We know some boundaries, right, from Osceolo.

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If you don't act on the information and you reach an agreement, then you can no longer use it.

[00:14:28] Speaker 00:
On the other hand, our position was simply that

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We wanted to, whatever happened, it had to be final.

[00:14:37] Speaker 02:
Council, suppose, this is just a hypothetical, or just not a hypothetical, but suppose I think, looking at the board's own decisions, that it's,

[00:14:55] Speaker 02:
interpretation of those decisions is making a policy decision that employers in this circumstance have two options and two options only and that the other cases you cite are distinguishable as the board says they are.

[00:15:13] Speaker 02:
because there are unusual circumstances that don't exist here.

[00:15:21] Speaker 02:
Does that preclude you from succeeding, or do you have an argument that you can prevail here, even if I view the cases that way?

[00:15:32] Speaker 00:
That's a good hypothetical, and I believe we fit in a rare category.

[00:15:38] Speaker 00:
And tell me why that is.

[00:15:39] Speaker 00:
And this is because nothing

[00:15:42] Speaker 00:
anybody can point to accept the suspension, which is a purely legal issue, is that we acted in bad faith or otherwise violated the law.

[00:15:52] Speaker 00:
Most cases, as you probably have seen, involve many different kinds of allegations that, by the way, involve actual employees.

[00:16:02] Speaker 00:
There was no indication here that any employee even was aware of what was happening in this case.

[00:16:11] Speaker 03:
All right, why don't we hear from the board to give you some time on rebuttal.

[00:16:18] Speaker 03:
Good morning.

[00:16:19] Speaker 04:
Good morning.

[00:16:19] Speaker 04:
May it please the court.

[00:16:20] Speaker 04:
Kelly Isbell here on behalf of the National Labor Relations Board.

[00:16:24] Speaker 04:
Under Levitz and cases since the 1980s,

[00:16:28] Speaker 04:
Employers have two choices.

[00:16:31] Speaker 04:
When they receive evidence that a union has lost its majority status, they can withdraw recognition or they can continue to bargain.

[00:16:40] Speaker 04:
Levitz is very clear.

[00:16:42] Speaker 04:
Even if you have evidence of a loss of majority support, you must continue bargaining if you go the route of the decertification election or the management election.

[00:16:55] Speaker 01:
Despite the fact that that is more case law,

[00:16:59] Speaker 01:
That does not immunize it against an arbitrary and capricious challenge, does it?

[00:17:07] Speaker 01:
The fact that you've done it before doesn't make it non-arbitrary and capricious, does it?

[00:17:12] Speaker 04:
No, Your Honor, it does not.

[00:17:14] Speaker 04:
except that in this case, as you know, it is the board's responsibility to set policy.

[00:17:19] Speaker 04:
The board followed Levitz, followed these older cases, Dresser Industries and RCA, and I don't... It is not like a notice and comment rule.

[00:17:29] Speaker 01:
This is something that when you work, work for the board does on case law.

[00:17:33] Speaker 01:
It is an inherently case-by-case aspect to it.

[00:17:37] Speaker 01:
It doesn't seem to me to protect against arbitrary and capricious challenge in a later case.

[00:17:43] Speaker 01:
Does it?

[00:17:44] Speaker 04:
Well, I think if you're talking about how this rule will work out in later cases, I think... Like this one, for example.

[00:17:52] Speaker 04:
I'm sorry?

[00:17:53] Speaker 01:
Like this case, for example.

[00:17:54] Speaker 01:
You look to me like you're the senator below and your ALJ both saw a great deal of merit in the third way, the lesser path chosen by the employer here.

[00:18:05] Speaker 01:
And in this precedent alone, they've given enough reason to reject that, but by explaining why, that isn't a good way to go.

[00:18:15] Speaker 04:
I can't find any case, except for these pretty rare examples that are factually distinguishable, where the board or court has allowed an employer to pick and choose what issues it will bargain about going forward to two rival unions or a decertification election.

[00:18:36] Speaker 04:
In that election process, the issue is the election and having a fair and balanced plan.

[00:18:42] Speaker 01:
Why don't you have the election?

[00:18:45] Speaker 01:
The board has had a petition for it for three years now.

[00:18:49] Speaker 01:
Why don't they have the election and put all this behind them?

[00:18:53] Speaker 04:
The charges were blocked.

[00:18:54] Speaker 04:
The board's blocking charge policy is long-standing, going back as far as I can tell to 1937.

[00:18:59] Speaker 01:
That might be right.

[00:19:01] Speaker 01:
I asked you for a while on that, not whether you've done it before.

[00:19:05] Speaker 01:
Because under the board's blocking charge... We had the same argument for IRS on the cases involving the

[00:19:14] Speaker 01:
discrimination by the IRS against certain groups.

[00:19:17] Speaker 01:
They said, well, we've always held up our rulings on tax-free status for all these years if there were litigation.

[00:19:25] Speaker 01:
We said that didn't make any sense.

[00:19:26] Speaker 01:
I don't know why it does here.

[00:19:28] Speaker 01:
If the board, in fact, is carrying out a policy of labor democracy, which is what our labor ancestors fought for, why don't they let the union members go ahead and vote?

[00:19:41] Speaker 04:
There are two kinds of blocking charges.

[00:19:43] Speaker 04:
The first kind is the kind of charge that might interfere with an election.

[00:19:48] Speaker 04:
And even though the company has argued in its brief that these charges were frivolous, this is not an argument they made to the board.

[00:19:56] Speaker 04:
Once the regional director blocks those charges, and remember it's the regional director's discretionary decision, he can block them.

[00:20:03] Speaker 04:
He found there to be enough evidence to go forward with a complaint on those charges.

[00:20:09] Speaker 01:
And there's no reason that I can see why you couldn't simultaneously go forward with the vote.

[00:20:16] Speaker 04:
Well, that is a direct challenge to the board's blocking charge rule.

[00:20:18] Speaker 04:
And once the regional director is.

[00:20:20] Speaker 01:
I understand that.

[00:20:22] Speaker 01:
That's what I do not see the reason behind.

[00:20:25] Speaker 01:
It's a direct challenge.

[00:20:27] Speaker 01:
I'm directly challenging you to tell me why you don't let the workers vote whether they want to be represented by the union or not.

[00:20:34] Speaker 04:
Because the regional director has determined that those charges might interfere with the election.

[00:20:40] Speaker 04:
He decided to block the election.

[00:20:42] Speaker 04:
That decision by the regional director could have been challenged.

[00:20:45] Speaker 04:
There could have been a request for review filed.

[00:20:47] Speaker 04:
It was not filed.

[00:20:48] Speaker 04:
And I do not believe that issue is before the court, Your Honor.

[00:20:52] Speaker 01:
Okay.

[00:20:54] Speaker 01:
But whether you want to lose this case is before the court, so you may wait to deal with the questions.

[00:20:58] Speaker 01:
But you've had your say, and I won't let you go forward.

[00:21:03] Speaker 04:
Well, I'm enjoying talking to you, so please continue to ask questions and don't think I'm... I'm not through on that.

[00:21:14] Speaker 04:
So under Levitz and Dresser Industries, there are two choices, and the board...

[00:21:18] Speaker 03:
I just want to clarify a little bit.

[00:21:24] Speaker 03:
You say the regional director decided the charges might affect any election.

[00:21:32] Speaker 03:
Was there such an explicit finding?

[00:21:35] Speaker 04:
No, there are, under the board's case handling manual, there are two types of blocking charges.

[00:21:40] Speaker 04:
The kind of blocking charge that might have an effect on employee free choice and election and then the kind of blocking charge you refer to it as taint where it might actually take the petition and the petition might eventually be dismissed.

[00:21:52] Speaker 04:
Those kinds of charges are supervisors are collecting signatures on the decertification petition.

[00:21:57] Speaker 04:
And there was never any discussion

[00:22:01] Speaker 04:
in this case of there being any kind of taint, and the regional director certainly never dismissed the petition, so it's a type one.

[00:22:07] Speaker 03:
And type one is... Type one is the lesser kind.

[00:22:10] Speaker 04:
It might interfere with the election.

[00:22:12] Speaker 03:
So once... Well, no, let me just be clear in my mind how you're... I think of taint as interfering with the election.

[00:22:20] Speaker 04:
It's worse.

[00:22:20] Speaker 04:
It might lead to the petition actually being dismissed.

[00:22:26] Speaker 03:
And then the other one is what?

[00:22:31] Speaker 04:
Conduct that might interfere with the election but would not lead to the petition actually being dismissed.

[00:22:35] Speaker 04:
Once that conduct is remedied, the petition stays live.

[00:22:39] Speaker 03:
So does the regional director have the authority under whatever guidelines or internal regulations to determine this is neither one nor two?

[00:22:50] Speaker 04:
Yes, Your Honor.

[00:22:52] Speaker 04:
There are exceptions.

[00:22:53] Speaker 04:
He doesn't always have to block.

[00:22:56] Speaker 04:
there are exceptions and of course it could have been a request for review could have been filed with the board so that the board could review it.

[00:23:08] Speaker 02:
Was there any way T-Lobel could have

[00:23:16] Speaker 02:
could have continued with its current policy that is not withdrawn recognition but said, look, why don't we just put off negotiations until we see who wins the election?

[00:23:29] Speaker 02:
Could they have done that?

[00:23:31] Speaker 04:
Well, I think under the board's decision, no.

[00:23:35] Speaker 04:
I mean, of course, if the union agreed and no charge was filed, then it wouldn't

[00:23:39] Speaker 02:
I mean, they could have said to the union, right?

[00:23:41] Speaker 02:
Look, let's just wait.

[00:23:43] Speaker 02:
And if the union agreed, that would be OK.

[00:23:45] Speaker 04:
Right.

[00:23:45] Speaker 04:
Because the board, yes.

[00:23:46] Speaker 02:
But if the union insisted on negotiating, it would have to negotiate, right?

[00:23:52] Speaker 04:
Yes.

[00:23:53] Speaker 04:
I mean, you know, if the charge is filed, then it would come to us.

[00:23:55] Speaker 02:
No.

[00:23:56] Speaker 02:
No, I'm saying they could have said to the union,

[00:24:03] Speaker 02:
Look, we're not going to withdraw our recognition, but why don't we just put things off until we see who wins the election, right?

[00:24:11] Speaker 02:
They could have done that, and the union could have agreed, and there wouldn't have been a problem, right?

[00:24:15] Speaker 04:
Right.

[00:24:15] Speaker 04:
There wouldn't have been a problem because it never would have come to the board.

[00:24:18] Speaker 02:
Correct.

[00:24:18] Speaker 04:
Yes.

[00:24:19] Speaker 02:
Now, if the union said no, we don't want to do that, then the employer wouldn't face a unfair labor practice charge if it then said, OK, we'll negotiate, right?

[00:24:31] Speaker 02:
Correct.

[00:24:33] Speaker 02:
Uh-huh.

[00:24:35] Speaker 02:
And so during this period of time, I take it if the union believed that the employer was not acting bargaining in good faith, it could file a ULP, even if the board's reason for sort of drawing out the negotiations was it's concerned that maybe the union didn't enjoy majority support, right?

[00:24:59] Speaker 04:
That the employer could have filed the?

[00:25:00] Speaker 02:
Yeah.

[00:25:01] Speaker 02:
Yes.

[00:25:01] Speaker 02:
No, the union.

[00:25:03] Speaker 02:
Yes.

[00:25:10] Speaker 02:
So here... Can you just tell us once again?

[00:25:14] Speaker 02:
Okay, so I understand the board's policy.

[00:25:17] Speaker 02:
I've read it.

[00:25:18] Speaker 02:
So its reason for this policy is that as long as the employer recognizes the union, it needs to participate in all of its collective bargaining obligations, right?

[00:25:28] Speaker 02:
Yes, Your Honor.

[00:25:36] Speaker 02:
Okay.

[00:25:38] Speaker 04:
The end?

[00:25:40] Speaker 02:
No, I didn't.

[00:25:40] Speaker 02:
Anything else?

[00:25:41] Speaker 02:
Okay.

[00:25:41] Speaker 02:
Sorry.

[00:25:43] Speaker 04:
Not a question mark.

[00:25:44] Speaker 04:
Well, what I wanted to point out is that the issue here is whether or not the board's decision applying Levitts in this particular situation is reasonable.

[00:25:56] Speaker 04:
And what the board did here was set out a rule that's pretty easy to follow.

[00:26:03] Speaker 04:
What T-Mobile's rule, which in its view of course is also reasonable, what I think lead to is more uncertainty for employers and unions.

[00:26:15] Speaker 04:
Then the board has to decide in every single case if an employer says we will bargain over non-economic issues but not economic issues, is that under the new T-Mobile rule,

[00:26:28] Speaker 04:
an unfair labor practice or not, so that has to go to the board.

[00:26:31] Speaker 04:
How long is the hiatus between bargaining?

[00:26:33] Speaker 04:
Is it six months?

[00:26:35] Speaker 04:
Is it a year?

[00:26:35] Speaker 04:
All of those questions come to the board.

[00:26:38] Speaker 04:
Here, following more than 30 years' worth of law, once you decide to go to an election and the election under the board's rules must be free and fair, then you continue your bargaining obligations.

[00:26:50] Speaker 02:
What about, what's your response to Council's answer to my question when I asked him whether or not, assume I think the Board has properly stated its rule here, namely, that you just have two options, but there are some exceptions, which you acknowledge, right?

[00:27:07] Speaker 02:
Yes, Your Honor.

[00:27:08] Speaker 02:
His argument was, well, this is an exception.

[00:27:11] Speaker 02:
This is an exceptional case.

[00:27:13] Speaker 02:
What was your response to that answer?

[00:27:15] Speaker 04:
My response is that the board didn't find it to be exceptional.

[00:27:19] Speaker 04:
I mean, the board found this to be a case where its traditional Levitz rule could apply.

[00:27:26] Speaker 04:
You just keep bargaining.

[00:27:28] Speaker 04:
And if they had kept bargaining, those charges were dismissed.

[00:27:32] Speaker 04:
the election would have happened.

[00:27:33] Speaker 04:
Right now it's being blocked because of this refusal to bargain.

[00:27:37] Speaker 04:
The issue is going to the election, and by refusing to bargain, then you're signaling to the employees that the union is ineffective.

[00:27:46] Speaker 04:
So your taint's not the right word, because that's a legal term, but you're affecting how the employees view the union before the election.

[00:27:54] Speaker 04:
And that's what the board found to be improper.

[00:27:56] Speaker 04:
Show Industries, of course, is completely different.

[00:27:58] Speaker 04:
You can close your plant for any reason.

[00:28:01] Speaker 04:
and there's nothing to bargain about.

[00:28:03] Speaker 03:
So the option the employer had, you said, was to appeal the regional director's, what I'll call a blocking decision, to the board.

[00:28:14] Speaker 04:
Is that right?

[00:28:15] Speaker 04:
To continue to raise the issue of whether or not that blocking charge was proper, or the blocking letter was proper.

[00:28:24] Speaker 03:
That's what I'm trying to understand.

[00:28:26] Speaker 03:
The employer says, I'm ready to participate in a special election.

[00:28:32] Speaker 03:
The regional director says there are these three ULPs.

[00:28:38] Speaker 03:
We can't have an election.

[00:28:40] Speaker 03:
Then what happens?

[00:28:42] Speaker 03:
Procedurally.

[00:28:44] Speaker 04:
Procedurally, once the regional director decides.

[00:28:47] Speaker 03:
He just did.

[00:28:48] Speaker 04:
Right.

[00:28:49] Speaker 03:
Then what?

[00:28:50] Speaker 03:
What is my option as the employer?

[00:28:53] Speaker 04:
you could settle the charges with the... Oh, I know.

[00:28:56] Speaker 04:
Okay, so okay, we're gonna assume there's no settlement, then it plays out like it did here.

[00:29:01] Speaker 04:
There's a hearing before the administrative logic.

[00:29:03] Speaker 03:
So there is no appeal of the regional director's decision as such on the blocking aspect.

[00:29:11] Speaker 04:
When the regional director sends, it's a letter, we call it a blocking letter, when he sends out that blocking letter, that can be appealed to the board.

[00:29:20] Speaker 03:
So then I go to the board,

[00:29:23] Speaker 03:
and I say, I won an election, then what happens?

[00:29:28] Speaker 04:
The board may grant review and it may deny review.

[00:29:31] Speaker 03:
I know.

[00:29:31] Speaker 03:
Take me forward, counsel, just so I understand this process.

[00:29:35] Speaker 03:
In other words, is the board going to decide the ULPs at that point?

[00:29:43] Speaker 03:
I'm trying to run a business.

[00:29:46] Speaker 03:
Right.

[00:29:47] Speaker 03:
All right.

[00:29:48] Speaker 03:
I've got 13 employees who told me they don't follow the union.

[00:29:53] Speaker 03:
All right?

[00:29:54] Speaker 03:
From my point of view, it doesn't make much sense for me to bargain with this union about a new collective bargaining agreement.

[00:30:03] Speaker 03:
But the regional director has said, even though the board favors these special elections, we can't have one because of these ULPs.

[00:30:14] Speaker 03:
So the question is, how do I get either rid of these ULPs or get them decided on the merits so we can have this special election?

[00:30:23] Speaker 03:
As I understood it, eight and a half months passed.

[00:30:28] Speaker 04:
Yes, Your Honor.

[00:30:30] Speaker 04:
So I'm going to analogize to the normal representation case context.

[00:30:34] Speaker 04:
If they filed a request for review, then the evidence before the regional director, if the board grants the request for review, the board says we will review it.

[00:30:42] Speaker 04:
The evidence before the regional director then goes to the board and a board attorney reviews it and the board would issue a decision.

[00:30:48] Speaker 03:
So the board is going to make a de novo ruling on the ULPs before the regional director made a decision?

[00:30:56] Speaker 04:
I think the board would not find whether or not those ULPs occurred.

[00:31:01] Speaker 04:
The board would look at whether or not those ULPs should block the election.

[00:31:06] Speaker 02:
You mean whether they're in the class of ULPs that block the election.

[00:31:11] Speaker 04:
This does not happen very... I'm sorry, Your Honor.

[00:31:14] Speaker 04:
This happens very rarely and when I...

[00:31:18] Speaker 04:
look to find requests for review.

[00:31:19] Speaker 04:
I couldn't find one immediately where the board had granted review.

[00:31:23] Speaker 04:
So I'm not sure how the board would look at it, but it would not be doing an administrative law judge's job of figuring out whether the action happened that would impact the election.

[00:31:33] Speaker 04:
It would be looking at whether or not the blocking letter should have gone out.

[00:31:37] Speaker 03:
Where did I read that we look somewhat skeptically at employers who are looking out for employee rights with their union?

[00:31:44] Speaker 04:
Osceola Ironworks, Your Honor.

[00:31:48] Speaker 03:
That's how the board comes down here.

[00:31:50] Speaker 03:
That the employer has to say, I'm not going to recognize the union anymore because I have what I consider to be firm evidence that the union no longer enjoys majority support.

[00:32:06] Speaker 03:
And then each employee who wants to use a company car has to negotiate independently with the supervisor, for example.

[00:32:16] Speaker 04:
For example.

[00:32:17] Speaker 04:
Yes, your honor.

[00:32:18] Speaker 03:
All right.

[00:32:20] Speaker 04:
If there are no further questions.

[00:32:22] Speaker 04:
Thank you.

[00:32:23] Speaker 04:
Thank you.

[00:32:32] Speaker 00:
Just briefly, a couple things that came up in the argument.

[00:32:40] Speaker 00:
To my knowledge, and it certainly is not part of the record, there was no blocking letter that was issued.

[00:32:46] Speaker 00:
We were just told... What did you just say?

[00:32:49] Speaker 00:
that there is no nothing in the record that evidences that the regional director actually did anything in writing in blocking this.

[00:32:59] Speaker 02:
My recollection is that relevant to what we're deciding today?

[00:33:02] Speaker 00:
I believe so, because because again, with no blocking letter, there's nothing to appeal.

[00:33:09] Speaker 00:
And in any event, and so you make this argument your brief.

[00:33:13] Speaker 00:
No I did not because this is because we in the as the dissent noted we didn't challenge the blocking policy because we just don't believe it was followed but I would point out a couple other things I just wanted to raise that the policy is written is fine we just don't we didn't we never got a determination but two things about that one is once we suspended bargaining a new charge was filed and guess what happened

[00:33:39] Speaker 00:
it proceeded to trial very, very quickly within three or four months after that.

[00:33:46] Speaker 00:
So there is some action that occurred from that.

[00:33:51] Speaker 00:
And the other thing I wanted to just spend the last minute time.

[00:33:54] Speaker 02:
What's the consequence of that?

[00:33:55] Speaker 02:
I'm sorry.

[00:33:57] Speaker 00:
Where does that take us?

[00:33:58] Speaker 00:
It shows that when the board needed to act, it could.

[00:34:05] Speaker 00:
and resolve all of these interests and it didn't until there was some more serious issue on the horizon and that was the suspension of bargaining.

[00:34:15] Speaker 00:
They could have issued a complaint or not or dismissed those charges months before.

[00:34:22] Speaker 00:
The board is operating on a hundred day schedule for trials once they issue a complaint.

[00:34:27] Speaker 03:
Well, they're trying to manage their docket, right?

[00:34:30] Speaker 00:
But that doesn't have nothing to do with reaching a determination on the merits of the case.

[00:34:34] Speaker 00:
The other point I would just raise very quickly is that I mentioned this in the brief, but I just wanted to reiterate it was that.

[00:34:48] Speaker 00:
The board on appeal takes the position that we engaged in piecemeal bargaining and that just simply didn't occur.

[00:34:55] Speaker 00:
That's a term of art that applies only to specific bad faith situations where the employer unilaterally implements a

[00:35:08] Speaker 00:
Term or condition of employment without bargaining and that just didn't occur here and that goes back to judge Tatel's hypothetical that we there were no tactics in In this ball that were alleged to be bad faith bargaining and the way the board characterizes it on appeal is Somewhat nefarious, you know, we we we took this policy and we we disabused the the union of the notion and that not surprisingly they accepted it now that that

[00:35:35] Speaker 00:
When you read the transcript, the union agent himself on the stand said that's bargaining.

[00:35:41] Speaker 00:
He didn't characterize it as good or bad or indifferent.

[00:35:44] Speaker 03:
All right.

[00:35:45] Speaker 03:
Thank you.

[00:35:46] Speaker 03:
Thank you very much.