[00:00:01] Speaker 01:
Case number 18-1222, United Skilled Paper and Board Street Rubber Manufacturing Energy Allied Industry and Service Workers International Union AFL-CIO CLC Local 14300-12 Petitioner vs. National Labor Relations Board.

[00:00:18] Speaker 01:
Mr. Sharma for the petitioner, Ms.

[00:00:20] Speaker 01:
Shehe for the respondent, and Mr. Peterson for the interviewee.

[00:00:25] Speaker 01:
Mr. Sharma, good morning.

[00:00:27] Speaker 00:
Good morning.

[00:00:28] Speaker 00:
My name is Manish Sharma.

[00:00:29] Speaker 00:
I represent the petitioner in this matter, United Steelworkers.

[00:00:33] Speaker 00:
I'm honored to be here, and I appreciate the opportunity to discuss this matter with you.

[00:00:39] Speaker 00:
I've reserved three minutes for rebuttal time.

[00:00:43] Speaker 00:
In this case, the union challenges the board's finding that the company met its rebuttal burden under the second step of its right-line analysis.

[00:00:50] Speaker 00:
The union acknowledges that this means that it does have a high hill to climb in order to prevail, but we believe that we can make that climb.

[00:00:57] Speaker 00:
The board's two-step right-line analysis probes the causal relationship between an employer's action and its employee's protected conduct, with the second step intended to allow the employer an opportunity to refute any causal connection.

[00:01:12] Speaker 00:
To prevail, the employer must show that its decision so sufficiently rested on non-discriminatory reasons that the contributing motivation supplied by any anti-union animus would not have changed the outcome of the decision.

[00:01:26] Speaker 00:
This is not an inquiry into the employer's true motivation or an attempt to weigh the illegal motivation against the lawful one to see which one is more compelling.

[00:01:36] Speaker 00:
As the board in right line said, it doesn't matter if the unlawful motivation was the straw that broke the camel's back or the bullet between the eyes, as long as it had a determinative effect.

[00:01:48] Speaker 03:
The board must be a but for cause.

[00:01:50] Speaker 03:
It's not enough that there was animus out there for the

[00:01:56] Speaker 03:
employer to have committed the unlawful practice, it has to be a but for cause, doesn't it?

[00:02:03] Speaker 00:
It has to be enough that if the removal of the consideration, the anti-union consideration, would have stopped the decision from occurring.

[00:02:16] Speaker 00:
And that's a fact decision, right?

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

[00:02:18] Speaker 03:
That's a finding of fact.

[00:02:20] Speaker 00:
That is.

[00:02:20] Speaker 00:
And the standard of review is?

[00:02:24] Speaker 00:
There's substantial deference in the board.

[00:02:29] Speaker 00:
It has to be substantial evidence in the record to support the board's finding of that.

[00:02:32] Speaker 00:
And what part of that finding that the board made was not supported by facts in the record?

[00:02:38] Speaker 00:
What we find, the union argues that the ability to

[00:02:42] Speaker 00:
For the board to have found that the company had sufficiently disentangled its unlawful motivation from the lawful motivation is not supported by fact.

[00:02:51] Speaker 00:
For the reasons that the ALJ found that the company embedded references to the unionized status of its workforce in upcoming collective bargaining negotiations throughout its economic justifications for closing the Middlesborough facility.

[00:03:06] Speaker 00:
and transferring his work to the non-union facilities.

[00:03:09] Speaker 00:
That in every piece of correspondence and in the initial capital expenditure request, the company links the presence of the union, limitations imposed by the union, and its desire to avoid bargaining with the union with the closure of the Middlesboro facility.

[00:03:25] Speaker 00:
So our argument is that on that record, the board could not have found

[00:03:30] Speaker 00:
that the lawful motivation, unlawful motivation, or so could be disentangled to figure out whether or not the decision would have occurred anyway.

[00:03:44] Speaker 00:
I want to say, I'm briefed.

[00:03:47] Speaker 04:
Do you dispute that the decision to close was made in September of 2014?

[00:03:52] Speaker 00:
We don't dispute that that was likely when the decision was made.

[00:03:59] Speaker 00:
We do argue that evidence of statements made beyond that

[00:04:07] Speaker 00:
are relevant to what the company was thinking as of September 2014.

[00:04:13] Speaker 04:
And so I was trying to understand in part what role or what are we supposed to do with all the secrecy about not disclosing the move to the Clinton facility, not telling the union or employees about the fact that there would be a facility there that they could apply to,

[00:04:36] Speaker 04:
not facilitating their transfers to the Clinton facility.

[00:04:41] Speaker 04:
Is that post-doc evidence that sort of looks back and in your view shines a light on what was driving the decision, or is there a distinct problem in how they handle disclosing this to the union and not facilitating employees?

[00:04:59] Speaker 00:
In our case, we are arguing that that is evidence that helps shine a light on the company's thinking in closing the Middlesbrough facility.

[00:05:13] Speaker 00:
at least part of the motivation as even the board concedes at the first step of right line was a motivation to rid itself of the union and the secrecy is consistent with that.

[00:05:26] Speaker 00:
That they didn't want, they wanted to open a new facility

[00:05:31] Speaker 00:
at which there would be a non-union workforce.

[00:05:35] Speaker 00:
A workforce that would not likely have a contract that had restrictions on 24-7 operation, filed grievances, those type of things that the evidence in the record suggests that they did not like.

[00:05:48] Speaker 04:
And I know that there's evidence in the record about two Middlesboro employees who were

[00:05:55] Speaker 04:
with some signing confidentiality agreements were moved to the Clinton facility.

[00:05:59] Speaker 04:
What I wasn't clear from the record is whether any other Clinton employee or Middlesboro employees or at least union members got jobs at the Clinton facility.

[00:06:12] Speaker 04:
Do we know or is the record just unclear?

[00:06:14] Speaker 00:
I think the record is unclear on that.

[00:06:16] Speaker 00:
And to be honest, Your Honor, I do not know the answer outside the record.

[00:06:24] Speaker ?:
OK.

[00:06:25] Speaker 00:
So the board in its brief provides three justifications to support its reasoning as to why the board believes that the company met its rebuttal burden.

[00:06:37] Speaker 00:
So the company rests its decision on its need for a modern facility, its desire to increase profits and efficiency, and the board's skepticism that the company would have made a $20 million investment to relieve itself of low-level union activity.

[00:06:53] Speaker 00:
On the last one, the board's own skepticism, or the idea that it was implausible that the company would have made the $20 million investment to rid itself of the union, that's a misplaced analysis of the second step of right line.

[00:07:09] Speaker 00:
That the board has already determined that it was motivated, at least in part, by its desire to rid itself of the union.

[00:07:15] Speaker 00:
So to now say, well, that would be implausible is misplaced here at the second step.

[00:07:21] Speaker 03:
As far as...

[00:07:38] Speaker 00:
I believe, Your Honor, if they had said that as an initial matter, as the first step of right line, and I made the argument here, then I would be asking you to re-write the evidence.

[00:07:47] Speaker 00:
I'm not sure I see the inconsistency of the truth.

[00:07:50] Speaker 00:
Well, the Board, even in the brief, they concede that part of the motivation for the company's decision to close the facility was its IUNIA.

[00:08:02] Speaker 03:
Why is that inconsistent with the later thing?

[00:08:06] Speaker 03:
That would not have been enough to cause those midgets to move.

[00:08:11] Speaker 03:
I don't see the inconsistency.

[00:08:13] Speaker 03:
It sounds like you're just asking us to assign a different weight to the two findings rather than...

[00:08:20] Speaker 00:
I respectfully believe that I'm saying that the board went beyond saying that simply wasn't a sufficient reason.

[00:08:28] Speaker 00:
They said it was just simply implausible that the company would do such a thing, making it sound as though that couldn't have been a motivation at all, which they had already determined in the first step it was a motivation.

[00:08:41] Speaker 04:
So the problem, the way they said it,

[00:08:45] Speaker 04:
was that they weren't then factoring in whether it was, as you said, the straw that broke the camel's back.

[00:08:49] Speaker 04:
They seem to say this wouldn't drive the decision by itself.

[00:08:53] Speaker 04:
But the inquiry is whether they may have had these other business reasons.

[00:08:59] Speaker 04:
And whether the absence of a union is what put the decision over the top or not.

[00:09:04] Speaker 04:
And that line doesn't grapple with that.

[00:09:06] Speaker 00:
That's correct.

[00:09:07] Speaker 00:
Because the union's not arguing that this is a pretextual case.

[00:09:11] Speaker 00:
We acknowledge that the company had mixed motives.

[00:09:13] Speaker 00:
It had some economic justification for what it did.

[00:09:19] Speaker 00:
But whether or not the added motivation

[00:09:23] Speaker 00:
that the board determined at the first step was there was enough to sort of put it over the finish line to get to that decision that it made.

[00:09:34] Speaker 04:
So are you making a legal argument that they didn't analyze it by applying that test or are you making an evidentiary argument that there's something in this record that wouldn't allow them to

[00:09:53] Speaker 04:
They didn't have substantial evidence for determining that even without the union issue, they would have made this decision.

[00:10:03] Speaker 04:
I'm trying to figure out which it is.

[00:10:04] Speaker 04:
I thought it was more the second substantial evidence argument.

[00:10:07] Speaker 00:
It is, Your Honor, because they did offer two justifications that the company wanted a modernized facility in that they desired to increase profits and efficiency.

[00:10:18] Speaker 04:
So what can you best point to on the record to support your theory that it was the

[00:10:23] Speaker 04:
anti-union motivation that put the decision over the top or that the decision wouldn't have been made but for that icing on the cake.

[00:10:33] Speaker 00:
Well, in its presentation in September of 2014, points out that initially, talking about the background of the plant, mentions that it's a unionized workforce since 1987.

[00:10:49] Speaker 00:
And it precedes that statement with a critical statement about the plant and follows that statement with a critical statement about the plant.

[00:10:57] Speaker 00:
The preceding statement is the current building cannot expand likewise.

[00:11:00] Speaker 00:
The following statement is that it's a critical facility in development of new products without dedicated R&D and testing equipment.

[00:11:09] Speaker 00:
So there is presenting as background, it's a unionized facility in a list of factors that were sort of explaining why the plant needed to go away.

[00:11:18] Speaker 00:
And that's further supported by, there's another

[00:11:24] Speaker 00:
slide in the presentation entitled current limitations in which it listed can't run all lines 24-7 union contract limitations.

[00:11:34] Speaker 00:
And it says no contract limitations to run 24-7 all time as a benefit to having a new facility and what the hourly staff requirements would be.

[00:11:45] Speaker 00:
There's also an email that came out later by Lisa that was edited by Lisa Jenkins who's the project engineer manager

[00:11:53] Speaker 00:
And she edited the email to include the reasons for closing the Millsboro facility.

[00:11:58] Speaker 00:
The Kentucky facility's equipment is outdated and in need of replacement, and the facility is the only union-represented workforce out of the 10 Durland manufacturing locations.

[00:12:08] Speaker 00:
And she testified that she made that edit based on information she had learned while being there.

[00:12:13] Speaker 00:
So I think that those are examples of the type of evidence that's in the record that makes it difficult or it makes it impossible for the board to have disentangled the lawful motivation from the unlawful motivation to say sufficiently that the lawful motivation would have solely driven the decision.

[00:12:36] Speaker 01:
We'll give you a couple minutes to reply.

[00:12:37] Speaker 01:
Thank you.

[00:12:45] Speaker 05:
Barbara Sheehy for the National Labor Relations Board.

[00:12:47] Speaker 05:
I don't have much to add beyond what's in the brief, but I'll touch on a couple of things that came up in opposing counsel's argument.

[00:12:53] Speaker 05:
Let's start where Judge Santel asked specifically what the test is.

[00:12:57] Speaker 05:
And it's absolutely right that it's a but-for test once you've gotten past the initial general counsel's burden to show that unlawful motivation is present.

[00:13:06] Speaker 05:
And then it moves to the second stage to show that the, what's up to the employer at that point, to demonstrate that it would have taken the same action in the absence of union activity.

[00:13:15] Speaker 05:
And again, I think the questions with opposing counsel in the court have shed a lot of light on the fact that this really does boil down to a difference of opinion on how the board chose to view the facts in this case.

[00:13:25] Speaker 05:
And if that's what it comes down to, the law is clear that the board is entitled to the deference, entitled to deference on those issues.

[00:13:33] Speaker 05:
So picking up a little bit on the facts there, my opposing counsel closed with a couple of comments about the evidence that's in the record.

[00:13:39] Speaker 05:
I think if you focus on the intervener's brief, I think they've done a very nice job in highlighting some of the problems with relying on that evidence, looking at it the way that the board looked at it.

[00:13:50] Speaker 05:
where it was appearing in the slide presentation, the bullet point pertaining to the union having a 24-7 restriction in the contract.

[00:13:59] Speaker 05:
That was among a bullet point list of six or seven when it was presented again later, and that was in the cover letter for the second capital expenditure.

[00:14:07] Speaker 05:
And then in the PowerPoint presentation, it's one time in the limitations section, it's one of 22 bulleted items for limitations.

[00:14:16] Speaker 05:
in the remedy part of that PowerPoint, where they say this is what the new facility is going to fix, it's one of 29 bullet points.

[00:14:23] Speaker 04:
Well, I guess, I mean, as your friend pointed out, there was an upfront finding here that, for shorthand purposes, I would call anti-union animus.

[00:14:35] Speaker 04:
Sure.

[00:14:35] Speaker 04:
Anti-union animus was

[00:14:39] Speaker 04:
motivating factor in this decision, or a factor in this decision-making.

[00:14:42] Speaker 04:
It was present.

[00:14:43] Speaker 04:
So it was something that they were, it was part of their decision-making calculus.

[00:14:47] Speaker 04:
And so what the board was supposed to do was say, well, was it a tipping point?

[00:14:54] Speaker 04:
I mean, it could have been primarily causal, but you have a mixed record in this case.

[00:14:59] Speaker 04:
And so really it was, was this a tipping point?

[00:15:02] Speaker 04:
Would they have made the same decision

[00:15:05] Speaker 04:
if you back that out.

[00:15:07] Speaker 04:
But the board's analysis is really, really short.

[00:15:11] Speaker 04:
And all it says is there's no dispute that they have these other reasons.

[00:15:14] Speaker 04:
If that's true, they're sent to suit.

[00:15:15] Speaker 04:
And then it applies this, it's implausible that they would have done this decision to relieve itself, essentially, from the union, which sounds like the union had to be solely causal.

[00:15:27] Speaker 04:
And that's not the right test.

[00:15:28] Speaker 04:
The right test is whether

[00:15:30] Speaker 04:
I mean, it would obviously count if it were solely causal, but it doesn't, it could be a sort of 3% factor, but if it's what puts them over the top, and so where do you read in the board's decision that it's grappling with that influence, whether it was what put things over,

[00:15:48] Speaker 04:
the top, that's what I don't see in the analysis.

[00:15:52] Speaker 04:
It seems like they articulated the test wrongly in their impossibility line.

[00:15:58] Speaker 05:
That's one of the factors they looked at.

[00:16:00] Speaker 05:
There were three different reasons that they credited the employers affirmative defense.

[00:16:06] Speaker 05:
The first one was the modernized facility, and I don't think there's any dispute about what the limitations were physically on this plan and how the new facility corrected that

[00:16:16] Speaker 05:
Then there was the second issue, or the second factor that the board looked at, which was the profitability.

[00:16:21] Speaker 04:
And then third, it's the profitability was all post hoc evidence, right?

[00:16:24] Speaker 04:
They said, Hey, and look, it worked out.

[00:16:25] Speaker 04:
They made a lot of money.

[00:16:27] Speaker 04:
I don't see how that tells us anything.

[00:16:28] Speaker 05:
I thought there was also, and I may be, I may be misremembering the decision in order.

[00:16:32] Speaker 05:
I thought that there was something additional about in the capital expenditure request, both of them, there was a projected savings on the part of the company.

[00:16:41] Speaker 05:
if the move was happening.

[00:16:42] Speaker 05:
So I thought the profitability comment had to do with that.

[00:16:46] Speaker 05:
I could be wrong, but that was my understanding.

[00:16:48] Speaker 05:
The profitability argument had to do with what was in as a projected savings for the employer.

[00:16:55] Speaker 04:
Okay, maybe I'm not reading it right, because I had just read, clearly there were limitations at this old place.

[00:17:02] Speaker 04:
And so these changes were critical to increasing productivity and efficiency, but that's right, the things crumbling under their feet.

[00:17:11] Speaker 04:
it's undisputed that as a result things doubled and gross earnings went up and I was just curious as to why normally when we're looking at decisions we look at information at the time of the decision and I wasn't understanding why it mattered because I assumed your position would be the same even if they

[00:17:30] Speaker 04:
say profits hadn't gone up for some reason.

[00:17:32] Speaker 05:
Certainly, I think the board's decision wouldn't have changed.

[00:17:34] Speaker 04:
Right, so why is that even relevant to be discussed?

[00:17:38] Speaker 04:
It's post-hoc evidence.

[00:17:40] Speaker 04:
So I saw this, you know, it's crumbling, we can't expand, so in that sense there's no profitability, it's just this thing is not working for us.

[00:17:49] Speaker 04:
hey, they were right, they're making lots of money, which seems to me an irrelevant consideration.

[00:17:54] Speaker 04:
And three, the anti-union animals, no one would make this decision just because of a desire to get away from the union, which is the wrong legal task.

[00:18:03] Speaker 05:
Right, and I think what the board is doing on that last part, though, is evaluating, looking at the strength of the employer's

[00:18:10] Speaker 05:
position, evaluating whether the employer was able to show that it would have taken this decision in the absence of... I'm not saying whether this record would have allowed the board to do that.

[00:18:20] Speaker 04:
I'm just not sure.

[00:18:21] Speaker 04:
You know, maybe they should have had you write the decision.

[00:18:24] Speaker 04:
But we can't do that after the fact.

[00:18:27] Speaker 04:
I don't think this is a question about

[00:18:29] Speaker 04:
whether there's stuff there on the record, it's just did the board make its finding, and really all we have is this implausibility.

[00:18:37] Speaker 04:
We have this sure it's undisputed there were huge problems, they couldn't expand, and they had hopes that expansion was going to make them more profitable.

[00:18:45] Speaker 04:
That goes hand in hand.

[00:18:47] Speaker 04:
Postdoc evidence and then this sole causation.

[00:18:51] Speaker 04:
Right, and I'm not sure I read it as a sole causation what the Board did there, as opposed to, well, it says in order to relieve, they wouldn't make this decision to relieve itself of union grievances or otherwise undermine the union.

[00:19:04] Speaker 04:
That doesn't grapple with, sure, they wouldn't make a big decision like that solely based on union animus, but we all agree that's not the test.

[00:19:12] Speaker 04:
It's whether everything's going in one direction, but there were positives about the existing place and whether this put it over the top.

[00:19:19] Speaker 04:
Did the Board just,

[00:19:20] Speaker 04:
do its homework, do it show its work the way it should.

[00:19:23] Speaker 05:
Right, and I mean, we wouldn't be here.

[00:19:25] Speaker 04:
Explain to me how it showed the work in that.

[00:19:27] Speaker 05:
Right, and again, I guess I would fall back on the modernized facility.

[00:19:31] Speaker 05:
I think the board does, I think they've evaluated that evidence very thoroughly in terms of what could and couldn't be done at this facility.

[00:19:39] Speaker 05:
And then, so I guess,

[00:19:41] Speaker 05:
I mean, I understand and I don't mean I'm not trying to be basic.

[00:19:43] Speaker 05:
I understand what you're trying to say in terms of what that last statement is having to do with the implausibility of doing it.

[00:19:49] Speaker 05:
But I suppose the way that I read that in the board decision was more evaluating the totality of what happened here, what the restrictions were, the very limited points in time where the union was mentioned during the communications.

[00:20:01] Speaker 05:
what the profit anticipation was, and that's all in the record, the board understood that, and then in that context, saying on this record, on this information, we don't credit that the, or we credit the employer's defense that it would have taken this action,

[00:20:21] Speaker 04:
That's what they say though.

[00:20:21] Speaker 04:
They say there's no reason, there's no way that a company would have made this big a decision just in order, I'm adding the just, in order to relieve itself of the union for grievances and other reasons, but to get away from, they wouldn't make this decision to get away from the union.

[00:20:38] Speaker 04:
That's a wrong pass.

[00:20:39] Speaker 04:
That requires sort of a 51% union, anti-union motivation when in fact

[00:20:45] Speaker 04:
all they need is one, two, or three if that one, two, or three is a tipping point.

[00:20:48] Speaker 04:
I don't see a tipping point.

[00:20:51] Speaker 04:
I don't see that.

[00:20:52] Speaker 04:
It seems to me this was a case, had to be a tipping point case.

[00:20:55] Speaker 04:
There was no way it was going to be a sole motivation case.

[00:20:57] Speaker 05:
I don't see a tipping point analysis.

[00:20:59] Speaker 05:
I should have perhaps led when we started going down this line of questioning.

[00:21:02] Speaker 05:
I don't read the employer's opening, I'm sorry, the union's opening brief to make this argument.

[00:21:07] Speaker 05:
It certainly is in the reply because what I was, it's certainly in the reply.

[00:21:11] Speaker 05:
So I think we also,

[00:21:13] Speaker 05:
would contest whether this is a sufficiently preserved and presented argument for the court.

[00:21:18] Speaker 05:
I don't read their opening brief to have it, which is why when I was reviewing in our brief, why I didn't see a written response to the claim that the board's reasoning was faulty for having properly inserted a first prong analysis into the second prong.

[00:21:34] Speaker 05:
So I should have perhaps started with that.

[00:21:35] Speaker 05:
That certainly doesn't cut off our conversation about this.

[00:21:38] Speaker 05:
But again, I think you just have to fall back on the board decision order where they talk about the modernized facility issue.

[00:21:46] Speaker 05:
It's the profitability.

[00:21:47] Speaker 05:
And then on the record as a whole, that this employer just did not, irrespective of the union, this employer was not going to keep the Middlesbrough facility open.

[00:21:57] Speaker 05:
And I think there's testimony also, as it relates to the 24-7 operation, I think there was testimony – he's either the CEO or the CFO – who says that even if there wasn't a contract limitation, it wouldn't have changed the decision because that was only a minimum – that was only one of six or seven major issues that were wrong with this, and that couldn't have increased productivity enough to alter the decision.

[00:22:17] Speaker 05:
I think it was deemed minimal.

[00:22:19] Speaker 05:
So for these reasons – thank you – for these reasons, I'd ask that the petition be denied.

[00:22:22] Speaker 01:
Thank you.

[00:22:23] Speaker 01:
Mr. Peterson?

[00:22:33] Speaker 02:
Good morning.

[00:22:33] Speaker 02:
Grant Peterson representing the Intervenor Duraline Corporation.

[00:22:38] Speaker 02:
Basically, Your Honors, the test under right line is, as the Supreme Court indicated in the transportation management case, it's not one where the employer needs to rebut the first section of the anti-union animus.

[00:22:56] Speaker 02:
As we mentioned on page 12 of our brief, the Supreme Court specifically said that

[00:23:02] Speaker 02:
The board held that there was a substantial or motivating factor in the discharge was anti-union animus.

[00:23:10] Speaker 02:
Even if this was the case and the employer failed to rebut it, the employer could still avoid being held in violation if it shows that it would have taken the same action in the absence of union animus.

[00:23:21] Speaker 02:
And basically, we believe that the evidence, compelling evidence, shows that the company would have taken the same action.

[00:23:30] Speaker 02:
The union has conceded, basically, that the company's reasons and financial justifications were valid.

[00:23:37] Speaker 02:
There's no pretext here.

[00:23:38] Speaker 02:
The key is, would the company have closed the Middlesbrough plant even in the absence of union activity?

[00:23:46] Speaker 02:
And the answer is yes.

[00:23:48] Speaker 02:
And the reason being is that the physical limitations of the Middlesbrough plant prohibited the company from accomplishing its goals.

[00:23:57] Speaker 04:
But there's more than that in the record.

[00:23:58] Speaker 04:
There's a lot about

[00:24:01] Speaker 04:
keeping this opening of the Clinton facility secret from workers, doing absolutely nothing to facilitate their ability to get jobs at the Clinton plant.

[00:24:11] Speaker 04:
Do you know, other than the two who were sort of secretly moved to the Clinton plant, whether union members from Middlesborough were hired at the Clinton plant?

[00:24:22] Speaker 02:
Yeah, there's no evidence in the record.

[00:24:25] Speaker 04:
There's also evidence of barriers to that, which is unusual.

[00:24:30] Speaker 04:
Often, employers are trying to help their people move to the new location.

[00:24:34] Speaker 04:
So I'm trying to figure out how to factor in that.

[00:24:39] Speaker 04:
So it seems like it's not just the place was crumbling, but once we decided the open one, we did not want the union workers from here to go to Clinton.

[00:24:48] Speaker 02:
Well I think the record evidence shows that the company expected the union to raise the issue of transfers during effects bargaining and that in fact the company notified the union three times before the close of effects bargaining.

[00:25:01] Speaker 02:
One when it announced the closing to the employees and the union president was present at the time and it was indicated that the

[00:25:09] Speaker 02:
manufacturing would be in fact transferred to Clinton again during the public announcement in October and again in response to the Union's letter requesting decision bargaining the company's lawyer indicated well the manufacturing would be in fact transferred from Middlesbrough to Clinton and despite those notices the Union never raised the question of transfer.

[00:25:34] Speaker 04:
It's more of an ALJ findings about

[00:25:37] Speaker 04:
you know, all this stuff that was happening afterwards and the secrecy and the failure to do anything to facilitate employees.

[00:25:44] Speaker 04:
Well, you've got to drive yourself there and apply.

[00:25:46] Speaker 04:
And no evidence that, in fact, you hired any union people after these, from the ALJ's view, these sort of strange behavior towards these union employees.

[00:25:58] Speaker 04:
And my only question is the board didn't grapple with that at all.

[00:26:02] Speaker 04:
doesn't deal with anything other than sort of the physical structure and the economic protections.

[00:26:08] Speaker 04:
And why isn't that important?

[00:26:12] Speaker 04:
It's not that it couldn't grapple with it, but why isn't that important evidence?

[00:26:16] Speaker 04:
If in a hypothetical case, not this one, you had strong evidence, you had the exact same record as to profitability and crumbling building, and it was clear that there'll be no union employees at the Clinton plant,

[00:26:29] Speaker 04:
And surely the board would have to grapple with that, wouldn't it?

[00:26:33] Speaker 02:
Yes, except that, as you had mentioned, the decision was really made to close the plant in September of 2014, long before.

[00:26:39] Speaker 04:
Yes, but in deciding what motivated that decision, if afterwards it was that there's no way we're letting any union employees go there, that would be certainly relevant to understanding what motivated this in the first place.

[00:26:52] Speaker 04:
Just as you all want to say, the profitability helps me after the fact understand what the motive was

[00:26:58] Speaker 04:
in September, then surely preventing union members, and to be clear, I'm going beyond, I'm giving almost like a hypothetical.

[00:27:06] Speaker 04:
If you had evidence of preventing union members from getting jobs in a new place, that should be factored in.

[00:27:13] Speaker 02:
except that a couple of things.

[00:27:16] Speaker 02:
One is the September 2014 documentation did in fact project a $7.3 million annual improvement in the profitability.

[00:27:28] Speaker 02:
So it's not after the fact evidence.

[00:27:30] Speaker 02:
That was part of the presentation.

[00:27:31] Speaker 04:
No, it's just the board talks about it and guess what happened?

[00:27:34] Speaker 04:
Right, it worked.

[00:27:35] Speaker 04:
Right, I'm talking about the board's basis for decision.

[00:27:38] Speaker 02:
Sure, backing up that determination is in the record, and that there was projections made in September.

[00:27:44] Speaker 02:
And that the key is that the individuals that were involved in the effects bargaining, et cetera, were not the same people that were present at the September 2014 presentation.

[00:27:55] Speaker 02:
As a matter of fact, the park, who was one of the key people in the effects bargaining piece, wasn't hired until after September 2014.

[00:28:03] Speaker 02:
So basically, it all comes back to 2014, and it's clear that the company could not have accomplished its goals because of the physical limitations at the Middlesbrough plant, regardless of the union activity, or regardless of whether the workforce was unionized or not.

[00:28:18] Speaker 03:
I have a converse question.

[00:28:19] Speaker 03:
Is there any evidence that the company, in fact, did anything to prevent the employees from applying for the new location?

[00:28:26] Speaker 02:
No.

[00:28:27] Speaker 03:
And the record is... I thought I saw something in the record about a discussion between the union and the company about

[00:28:33] Speaker 03:
Where they would have to go to apply?

[00:28:36] Speaker 03:
Am I making that up?

[00:28:37] Speaker 02:
No, there was a job fair and they were told to go to the job fair.

[00:28:40] Speaker 03:
If they were told about it and they could have gone and applied.

[00:28:45] Speaker 02:
Right.

[00:28:45] Speaker 02:
Unfortunately, there's nothing in the record indicating that anybody actually did apply.

[00:28:50] Speaker 04:
So... It was like a 70-minute drive to get there and you had the two employees who were transferred in secrecy.

[00:29:01] Speaker 04:
That's unusual, isn't it?

[00:29:02] Speaker 02:
Well, except that the reason for the confidentiality agreement was that the announcement hadn't been made to anybody.

[00:29:10] Speaker 02:
The public included for the reason stated that the company did not want to upset customers and employees to have them misinterpret what was going on.

[00:29:22] Speaker 02:
And so they wanted to make sure they could structure the announcement appropriately.

[00:29:25] Speaker 03:
As far as the drive to get there, if I remember my appellation judge correctly, that's what, about an hour and 10 minute drive between Clinton and Middlesborough?

[00:29:33] Speaker 03:
I believe that's true.

[00:29:33] Speaker 04:
70 minutes, yeah.

[00:29:35] Speaker 04:
70 minutes.

[00:29:36] Speaker 03:
That'd be an hour and 10 minutes.

[00:29:37] Speaker 04:
Yeah, exactly.

[00:29:39] Speaker 03:
All right.

[00:29:39] Speaker ?:
Thank you.

[00:29:39] Speaker 01:
Thank you.

[00:29:43] Speaker 01:
Does Mr. Sharma have any time left?

[00:29:45] Speaker 01:
Mr. Sharma does not have any time left.

[00:29:49] Speaker 01:
All right, why don't you take two minutes?

[00:29:55] Speaker 00:
Thank you, Your Honor.

[00:29:56] Speaker 00:
There's just a couple of points I wanted to make.

[00:29:58] Speaker 00:
One was on this issue of the profitability.

[00:30:03] Speaker 00:
As Judge Belmont points out, part of that is, OK, well, what happened afterward?

[00:30:09] Speaker 00:
But also, the profitability comes about because there was a substantial investment that had to be made.

[00:30:14] Speaker 00:
And according to their calculations,

[00:30:18] Speaker 00:
due to the discounted rate of the money they were borrowing from Mexican, the parent company, it would take at least seven years to pay off just to build the Clinton facility.

[00:30:27] Speaker 00:
So again, the question is, would they have made that investment solely based on the limitations with the plant, or with added motivation of getting rid of the union, did that trigger that decision being made?

[00:30:42] Speaker 00:
And there's just simply not enough of the record to determine whether or not that's the case.

[00:30:50] Speaker 00:
The CEO testifying that it wouldn't have made a difference, I forget if it's the CEO or the CFO testifying that had the union agreed to concessions with that and made a difference and the testimony was no.

[00:31:05] Speaker 00:
But that's consistent with testimony, but that's consistent with the idea we just wanted to get rid of the union.

[00:31:11] Speaker 00:
That's not simply saying, well, if they'd given us concessions, then we could have done what we wanted.

[00:31:15] Speaker 00:
If they had made a decision to get rid of the union, then of course the testimony would have been no.

[00:31:21] Speaker 00:
I think those are all the points I really wanted to make.

[00:31:27] Speaker 00:
All right.

[00:31:29] Speaker 00:
Thank you.

[00:31:29] Speaker 00:
Thank you.