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Case number 20-1032 et al.

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Alaska Communications Systems Holdings, Inc.

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Petitioner versus National Labor Relations Board.

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Mr. Adlong for the petitioner.

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Mr. Francisco Fitzmaurice for the respondent.

[00:00:15] Speaker 03:
Good morning, Council.

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Mr. Adlong, please proceed when you're ready.

[00:00:20] Speaker 04:
Good morning.

[00:00:21] Speaker 04:
May it please the court.

[00:00:22] Speaker 04:
I'm Daniel Adlong, Council for Repellent Alaska Communications Systems Holdings, Inc.

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re-request that the court deny enforcement of the board order for the following three reasons.

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First, the NLRB failed to follow specific NLRB representation rules, which deprived the company of notice and an opportunity to be heard.

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Second, the failure to give the company notice and an opportunity to be heard caused the NLRB to inappropriately add two Alaska-based employees to the petition for unit, which violated the NLRB rules and caused the NLRB to conflate the appropriate unit analysis

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with the Armored Globe analysis.

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Third, in its community of interest analysis, the board pigeonholes facts into a specific conclusion it sought, but it lacked substantial evidence to justify that conclusion and departed from precedent without providing a reasoned justification.

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For these three reasons, we believe that this court should deny enforcement of the board order.

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First, the board failed to follow the NLRB representation rules, which deprived the company of notice and opportunity to be heard.

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The union filed a petition seeking to add the Oregon-based cable systems employees to the Alaska unit.

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In response, the company filed a position statement.

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At that point, 102.64A requires that there is a hearing to determine if a question of representation exists and if a proper petition has been filed concerning an appropriate unit.

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At the outset of the hearing, the rules require that the union

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respond to the position to the position statement here at join.

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I back up and ask you a question before we get to the unions statement as to yours.

[00:02:06] Speaker 01:
As I read the regulations and maybe I'm not reading it correctly 102.63.

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B1I, talks about the employer statement of position.

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And it says, obviously, do exactly what you did here.

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And if you think that there's objections to the proposed unit by the union, you state those objections, which you did here by flagging that you would have to have these

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to employees in there doesn't make sense with that.

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It's not an appropriate unit without them.

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But the rule goes on to say that you must also state the classifications, locations, or other employee groupings that must be added to make it an appropriate union.

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added or excluded, but you were talking here about you had to add them to have an appropriate unit.

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And I'm confident your client complies with the regulations.

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So isn't it a fair reading of your statement of position that you were doing what the regulation required?

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You were both identifying a problem with the unit proposed by the union, and as the regulation requires, you were identifying what must be added to make an appropriate unit.

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Isn't that what your statement did?

[00:03:27] Speaker 04:
No, let me explain.

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So when you read those rules, the rules require that you file a statement of position and that the statement of position includes multiple employee lists.

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One list is the list that identifies who's in the petition for a unit.

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Another list identifies who should be excluded.

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And another list identifies who should be included.

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You only include those that should be included should you seek to expand the unit.

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Here, the company took the position that the petition for unit did not share community of interest with the Alaska based unit.

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We did not seek to expand the unit or change the composition.

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We only saw that it be in a standalone unit.

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And so we'd made no suggestion and provided no

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list to suggest that the Alaska-based employees should.

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I'm a little confused.

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What should have been the standalone unit?

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You can't say just the Oregon employees.

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Your whole argument was no, you'd have to have the two Alaska employees for a standalone unit.

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Our position was that if the two, our position was separate and apart from a, if it was not a globe, a standalone unit of the cable systems employees was appropriate.

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The reason why we pointed out

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the Alaska employees was because they were not included.

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And in the analysis of a globe, it made the unit inappropriate.

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When you conduct a globe analysis, the first question is, is an identifiable distinct segment of the population?

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That's what the regional director explained.

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And the regional director said, no, it's not an identifiable or distinct segment of the population.

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As a result, it's fragmented.

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And the regional director's decision says at that point,

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the analysis should end.

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You only continue to the community of interest analysis if there's an identifiable distinct segment of the population.

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Since there wasn't, it should have stopped the analysis.

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And what we were saying is the standalone unit, if it was not being globed in, was a unit that would be appropriate for bargaining.

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So your position was that

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that you were you were litigating whether these two employees should or should not be included in this unit all along.

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And then address community of interests.

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Yeah.

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Correct.

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And one of the issues, too, to remember that has not really been part of this litigation and doesn't stand out is that at the start of the hearing, there was some discussion with respect to whether or not this constituted a system wide unit.

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And if it's a system-wide unit, that makes a presumption of appropriateness.

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So when you take a look, for example, there's six times during the hearing where we ask and specify that the Alaska-based employees aren't included.

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That specifically speaks to the presumption that these employees are not out.

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So there is not an presumption of appropriateness in the petition for unit so that there is a full

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review of the appropriateness and try to allocate the burden appropriately as the... Where does your statement of position say?

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Because you say that everyone's tied very tightly to these statements of position.

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So where does your statement of position say that if you did include these two Alaska employees with, I'll just call the Oregon unit cable systems group, then you would have a sufficient, you would no longer have a fragmented unit

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But there wouldn't be a community of interest.

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Where do you say, if those two are in, you still don't have a community of interest?

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In your statement of position.

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Well, in our statement of position, we didn't specifically speak to that.

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We merely said that the standalone unit did not have a community of interest.

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And we did not neither suggest that they be put in at the hearing as we articulated our arguments.

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Where did you talk about these two employees in your statement of position?

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We didn't have a reason to talk about them because we were not putting them in.

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We merely identified in the statement of position that it was an inappropriate unit to add to the globe, to the Alaska unit.

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So you didn't put anybody on notice that you were objecting to the exclusion of these two employees?

[00:07:52] Speaker 04:
No, I would say that we did.

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In your briefing and stuff?

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In the position statement, there would have been no reason to say,

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were objecting to their addition because it was never identified as an issue.

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I'm not asking that.

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I'm asking where you said that this unit with these two employees added would not have a community of interest with the Alaska unit.

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Because you clearly were objecting to the exclusion of these two.

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And so when they come in, that's true.

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Well, this gets to the heart of our argument.

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It was never identified for us that should they be included, would there be a community of interest.

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The issue throughout the whole hearing was the Alaska-based unit and the petition for unit, which only included the Oregon employees.

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We never had reason to suggest that we need to argue about the community of interest regulation.

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You don't get to just object.

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You're supposed to then go forward and say who needs to be added.

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And so you did that.

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And so why wouldn't you be on notice and once I have once we have what what Alaska communications no longer thinks as a fragmented unit.

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Once you bring those two people in, it's no longer a fragmented unit.

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It's obvious that you then still have to show that that grouping does not have a community of interest with the Alaska ones.

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It's not enough just to say they could be their own standalone unit.

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That's not the test.

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Wasn't it obvious you were going to have to show that with those two Alaska employees added, they don't have a community of interest?

[00:09:28] Speaker 04:
No, I would disagree.

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And the reason I would disagree, as like I said, is that the

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The regulation requires identifying what would make the unit appropriate if you're seeking to expand it or change it.

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Here, our objection was to the globe, adding them to the Alaska unit.

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It was not necessarily that that unit by itself was inappropriate.

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It was that adding them to the globe was inappropriate, that they shouldn't be a part of the Alaska group because they lacked a community of interest.

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And then when you talk about

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The Alaska based employees that speaks to the geographic proximity and that speaks to interchange and other issues that speak to the community of interest when you're doing the community of interest analysis for the separate Cable systems organ based unit.

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Can I just ask, just so I understand the history here so

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The unit, with respect to the Alaska employees, isn't defined as such at the time that the proceeding starts.

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So your position is, at that point, we had no reason to object because we didn't know they were going to be considered to be part of it.

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Then during the hearing, you make several statements during the hearing that address the fact that the Alaska employees are part of the Hillsborough group.

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That's the six statements you're talking about.

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So at that point, the companies at least put into issue, whether the it makes sense to have a unit that doesn't encompass the Alaska employees.

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I would disagree.

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I would look at it like this.

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We are given a true false test.

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True or false is a community of interest between the Alaska based employees and the Oregon based employees.

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Explain your analysis.

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We said false.

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We explained the reason why.

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The regional director came out and agreed, but then the regional director said, even though you're right, I'm still going to change it and say we're going to include the Alaska employees.

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We merely pointed to the Alaska employees to show what the appropriate burden was and to also show that it was a fragmented unit.

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When you look at 102.64A, that speaks to an appropriate unit.

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A question of representation exists if a proper petition has been filed concerning a unit

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appropriate for the purposes of collective bargaining.

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At all times, we were speaking to the unit petitioned for because nobody at any time said, we are going to include these Alaska-based employees into the unit.

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We used it to highlight the fragmentation of the unit and to highlight the fact that because of the fact that it was fragmented, adding them to the Alaska unit was inappropriate.

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And we also used it to properly allocate the burdens.

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Okay.

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Let me make sure my colleagues don't have further questions for you.

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And then maybe we'll hear from the board, but I have.

[00:12:31] Speaker 01:
Yeah, sure.

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I'm sorry.

[00:12:34] Speaker 01:
Go ahead.

[00:12:35] Speaker 03:
Go ahead.

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Judge.

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Yeah.

[00:12:36] Speaker 01:
I just want to know what what this Ninth Circuit cases that's going on and sounds like there's a related case in the Ninth Circuit.

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That was brought by the union.

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And is that does that involve any of the same up here or would resolution of that case affect this case in any way.

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I don't think resolution of that case affects this case.

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What happened there is the collective bargaining agreement has a grievance and arbitration procedure.

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And it also has a scope of agreement provision that says it only applies within the state of Alaska.

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The union sought to arbitrate a demand for voluntary recognition.

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We denied that.

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They moved to compel arbitration.

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The judge has ruled that's pending before the Ninth Circuit.

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And we've arbitrated that case, and that

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arbitration and the resolution of that speaks to whether or not the collective bargaining agreement requires that we add all the employees in Oregon into the Alaska-based unit.

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So I guess in that respect it does.

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Should we lose the arbitration and should we lose at the Ninth Circuit, then at that point this proceeding would become

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I guess move because at that point we would have an arbitrator saying, you need to add these employees in with all the terms and conditions.

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And you would have the ninth circuit saying, no, you are supposed to arbitrate that issue.

[00:14:20] Speaker 01:
I'm sorry, you're in arbitration right now?

[00:14:22] Speaker 04:
Yeah, we're filing briefing right now.

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And that decision could resolve as a matter of arbitration.

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whether you are required to recognize and include within the collective bargaining agreement provisions this very same grouping?

[00:14:41] Speaker 04:
Yes.

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The issue is slightly different with respect to when you have an armor globe analysis, you add employees into a unit.

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But when those employees go in, you still bargain the terms and conditions of employment for the employees.

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Whereas what the union seeks to do through that arbitration is compel the company

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to put the employees into the unit and give them the exact same terms and conditions of employment that the collective bargaining agreement applies.

[00:15:09] Speaker 01:
But it sounds like that includes, there's the issue of what terms and conditions apply, but there's also a predicate question of whether an arbitrator would rule that you have to include all of these employees with the Alaska employees into a single unit.

[00:15:27] Speaker 01:
Correct.

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Which is the same question we have here.

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Correct.

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It's a slightly distinct question, but at the end of the day, do they all go in?

[00:15:36] Speaker 01:
I don't get it.

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If they all go in, then your arguments here go nowhere.

[00:15:44] Speaker 04:
That is correct.

[00:15:46] Speaker 01:
OK, so that's not slightly different.

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That's the same question.

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Is there a preference for whether arbitrators should decide that question before the score?

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What's the order of decision-making preference?

[00:16:02] Speaker 04:
Our order of decision-making preference would be that... I'm not asking about your preference, I'm asking about the law requirement, sorry.

[00:16:12] Speaker 04:
No, yeah, no.

[00:16:13] Speaker 04:
Well, here's... I think this is why I view the... Let me explain my reasoning for why I view it slightly different.

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Is that because under the Armour Globe analysis, we still have bargaining rights with respect to these employees.

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And although they go into the unit, the ultimate effects of that are very different than if the employees are forced in through arbitration.

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With that being said, the ultimate effect, if they are put in through arbitration, that would make this proceeding move.

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And as a result, as best as I would understand it,

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is arbitration would be the first part of the analysis.

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Does the collective bargaining agreement require them to go in?

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With that being said, with that being said, during the hearing, this issue was raised.

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And the board took the position.

[00:17:30] Speaker 01:
Just to be clear, during which hearing?

[00:17:33] Speaker 04:
During the hearing at issue in our first hearing.

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During the hearing before the regional director, this came up.

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And the position from the regional director was that that's not something to be decided here.

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And if you want to pursue it from arbitration, that's fine.

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But we will proceed with this hearing before us.

[00:17:54] Speaker 01:
So if we were to rule for you,

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Would you then take that decision to this arbitration and would it have any impact on the arbitration decision?

[00:18:08] Speaker 04:
I would take the position that it wouldn't because I think the questions that are being asked here are different than the questions that are being asked there.

[00:18:16] Speaker 01:
So the arbitrator could still decide that those employees, all the employees are, if we said, you know, you're right, you didn't have fair process on when these employees should be added.

[00:18:28] Speaker 01:
that arbitrator could still go, those employees are in.

[00:18:34] Speaker 01:
Under the arbitration agreement, notwithstanding a finding by us a fair process.

[00:18:39] Speaker 04:
What the arbitrator would say is those employees are in subject to section 1.9B of the collective bargaining agreement.

[00:18:47] Speaker 04:
So the analysis there is a different analysis.

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It doesn't speak to community of interest and appropriateness of the unit.

[00:18:56] Speaker 01:
OK, thanks.

[00:18:58] Speaker 03:
Thank you, counsel.

[00:18:59] Speaker 03:
We'll hear from the government.

[00:19:00] Speaker 03:
We'll give you some rebuttal time.

[00:19:02] Speaker 03:
Mr. Francisco Fritz-Maurice.

[00:19:06] Speaker 05:
Yes.

[00:19:07] Speaker 05:
Thank you, Your Honors.

[00:19:08] Speaker 05:
May it please the Court?

[00:19:09] Speaker 05:
My name is Brady Francisco Fritz-Maurice.

[00:19:12] Speaker 05:
I represent the National Labor Relations Board, which is here seeking enforcement of its order, finding that the company violated Section 8A5 and 1 of the National Labor Relations Act when it refused to recognize and bargain with the union

[00:19:23] Speaker 05:
after a majority of its employees in the cable systems group voted to join an existing bargaining unit already represented by the unit.

[00:19:32] Speaker 05:
I'm going to start off focusing my comments on the inclusion of the two Alaska-based employees, because that's what we've been discussing for the most part so far.

[00:19:42] Speaker 05:
As Mr. Adlong's argument made out, the company's strategy here apparently was to seek dismissal of the petition, the union's petition.

[00:19:52] Speaker 05:
by showing that the petition for unit was inappropriate.

[00:19:57] Speaker 05:
That strategy reflects a basic misunderstanding of the board's longstanding process in what is a non-adversarial fact-finding representation hearing.

[00:20:06] Speaker 05:
Section 9B of the act tasks the board with determining a bargaining unit appropriate for the purposes of collective bargaining and shall do so, quote, in order to assure employees the fullest freedom in exercising the rights guaranteed by the act.

[00:20:22] Speaker 05:
So in a hearing, after facts are found at the hearing, if the board determines that the petition for unit is appropriate, the analysis comes to an end and the board will order an election in which employees in that proposed unit choose whether to select union representation.

[00:20:38] Speaker 05:
If not, the petition is not necessarily dismissed as Mr. Adlong and the company would advocate for.

[00:20:45] Speaker 05:
Rather, the board may examine alternative units either suggested by the parties

[00:20:50] Speaker 05:
But it also has the discretion to select an appropriate unit that's different from the alternative proposals of the parties.

[00:20:57] Speaker 05:
And that's been the law for years.

[00:20:59] Speaker 05:
I'm quoting from the board case Bartlett Collins in 2001 at this point.

[00:21:03] Speaker 03:
So even if the board does have that flexibility to consider a modified unit, the regional director could have

[00:21:15] Speaker 03:
indicated to the parties that there's a consideration of a different kind of unit, and then given the parties an opportunity to address the bona fides of the different shape of unit that was being considered.

[00:21:26] Speaker 03:
But that didn't happen, right?

[00:21:28] Speaker 05:
It did happen, Your Honor.

[00:21:29] Speaker 05:
So I would say two things.

[00:21:31] Speaker 05:
One is that at every single representation hearing, the point is to find a unit that's appropriate.

[00:21:39] Speaker 05:
It's not to simply dismiss a petition at the first opportunity.

[00:21:42] Speaker 05:
But to answer your question directly, that did happen.

[00:21:45] Speaker 05:
Before the close of the hearing, the hearing officer asked whether the union would be willing to proceed in an alternative unit, for example, in a broader unit than proposed.

[00:21:56] Speaker 05:
And the counselor representing the union specifically said yes.

[00:22:00] Speaker 05:
And not only that, but also specifically stated that the union would be willing to proceed in either an armed global election or a regular election for a standalone unit, whether or not those units included or excluded the two Alaska-based employees

[00:22:15] Speaker 05:
Kelly and Huff.

[00:22:17] Speaker 05:
So that did happen here.

[00:22:19] Speaker 05:
And the company was on notice before the end of the year.

[00:22:23] Speaker 03:
And you're saying the company was on notice because of the comment that the regional director directed towards the union?

[00:22:30] Speaker 05:
Well, for two reasons, your honor, for that reason, but also because the point of the hearing is to identify an appropriate unit.

[00:22:37] Speaker 05:
And it was the company, as your honors have noted, it was the company that introduced the issue

[00:22:42] Speaker 05:
of whether those two employees should be included or excluded.

[00:22:46] Speaker 05:
I made a note here that I think there was a statement made by Mr. Aulong that nobody at any point said that we would add those Alaska employees to the unit, but that's not correct.

[00:23:01] Speaker 05:
The union's attorney specifically said that on the record and that the union would be willing to proceed in that unit.

[00:23:08] Speaker 05:
So really the fact is that

[00:23:10] Speaker 03:
The that during the exchange that you were just talking about.

[00:23:13] Speaker 03:
That's, that's at the end of the hearing when the regional director said and you're at that point, the regional director specifically talked about adding these two employees to the unit.

[00:23:22] Speaker 03:
And yes, and the union acquiesce to that notion.

[00:23:25] Speaker 05:
That's correct.

[00:23:26] Speaker 03:
And then what was the was there.

[00:23:30] Speaker 03:
What happened with the company.

[00:23:32] Speaker 05:
Sure, so I mean, at that point, the company very well could have said, you know, wait, we didn't know that was an issue.

[00:23:38] Speaker 05:
If that's an issue, we'd like to introduce the following evidence, ABC.

[00:23:43] Speaker 05:
You know, the company could have said, made an offer of proof.

[00:23:47] Speaker 05:
Those things didn't happen.

[00:23:48] Speaker 05:
The company's only response was they can't amend their petition now, which is really beside the point.

[00:23:55] Speaker 05:
You know, as I've noted, the petition for unit is not the only unit that the board considers

[00:24:01] Speaker 05:
the board can consider alternate units.

[00:24:04] Speaker 05:
So the petitioner, I'm sorry, the company didn't identify any evidence they wanted to introduce.

[00:24:11] Speaker 05:
And for that reason, at this point, they can't show how they've been prejudiced at all by the proceedings in this case.

[00:24:17] Speaker 05:
And for that reason, I would argue that there's been no due process violation either.

[00:24:24] Speaker 05:
Really, it was the company that introduced this issue by, as Mr. Avalon's stated,

[00:24:30] Speaker 05:
raising on multiple occasions these two Alaska unit employees.

[00:24:35] Speaker 05:
And really, if I could take a step back, the reason that that issue came up is because of what the test is for a self-determination election.

[00:24:46] Speaker 05:
Under board law, a self-determination election is appropriate where two things are present.

[00:24:50] Speaker 05:
One, where the additional petition for sought after employees constitute an identifiable distinct segment.

[00:24:57] Speaker 05:
of the unrepresented employees such that they constitute an appropriate voting group, and two, that those additional employees share a community of interest with employees in the existing unit.

[00:25:10] Speaker 05:
It's worth pausing just to soak that in because there's an existing tension there, right?

[00:25:15] Speaker 05:
Whenever there's evidence that the sought after employees are identifiable and distinct, that evidence is going to tend to undermine or not undermine, but run counter to the evidence that shows

[00:25:28] Speaker 05:
that these two groups share a community of interest.

[00:25:31] Speaker 05:
So the fact that there is this tension or these bits of evidence that were encountered to one another really doesn't undermine the community of interest analysis that's present in every case where a self-determination election is appropriate.

[00:25:45] Speaker 05:
And that's what we saw here.

[00:25:48] Speaker 05:
So just to touch upon the community of interest analysis, unless there are further questions on the Alaska-based employees.

[00:25:55] Speaker 02:
I do have one question under 9b.

[00:25:58] Speaker 02:
you do have the latitude to pick the appropriate unit.

[00:26:04] Speaker 02:
Would you say that this is an employer unit, a craft unit, a plant unit, or a subdivision of one of those?

[00:26:14] Speaker 05:
I would say it's a subdivision.

[00:26:17] Speaker 05:
It's certainly not a wall-to-wall unit.

[00:26:19] Speaker 05:
It's certainly not a craft unit.

[00:26:22] Speaker 05:
So it would be the unit here is coextensive with the employer's subdivision of its operation called the Cable Systems Group.

[00:26:30] Speaker 02:
So it would be a subdivision of the employer unit?

[00:26:34] Speaker 02:
Yes.

[00:26:34] Speaker 02:
OK, thank you.

[00:26:36] Speaker 02:
Sure.

[00:26:37] Speaker 05:
And so yes, what the board did here was it followed its longstanding community of interest analysis.

[00:26:47] Speaker 01:
OK, let's give in that regard.

[00:26:50] Speaker 01:
So given that Holmes and Pavlenko are statutory supervisors, then how do you reconcile that with the finding there was sort of a common supervision here?

[00:27:03] Speaker 01:
Because the day-to-day supervision was different between the two groups, with Holmes and Pavlenko for the Oregon folks and someone else for the Alaska group.

[00:27:14] Speaker 01:
Sure, yes.

[00:27:15] Speaker 01:
Day-to-day, what matters?

[00:27:17] Speaker 05:
That's correct, Your Honor.

[00:27:18] Speaker 05:
One of the issues that was litigated at the hearing was the eligibility of Holmes and Pavlenko as employees under the act.

[00:27:26] Speaker 05:
And the board concluded that, no, they're not employees.

[00:27:28] Speaker 05:
They're supervisors under Section 211, and therefore not eligible for inclusion in the unit.

[00:27:34] Speaker 05:
So there is that analysis that is not an issue here.

[00:27:38] Speaker 05:
The board's finding that those two individuals are statutory supervisors.

[00:27:45] Speaker 05:
doesn't contradict its finding that there is common day-to-day supervision between the cable systems group and the Alaska unit employees.

[00:27:53] Speaker 05:
What happened here is that there is a group of employees at the Hillsboro facility that are headed up by homes and a group of employees that are mainly in the field or at landing stations on the coast that are headed up by Pavlenko.

[00:28:09] Speaker 05:
But those two groups actually share supervision with their counterpart groups in Alaska at the Anchorage facility

[00:28:14] Speaker 05:
and also field technicians in Alaska who share supervision with two men named Brewer and Took.

[00:28:23] Speaker 05:
With regard to Poblenko in particular, the evidence was quite strong that while he does have sufficient indicity of supervisory responsibilities to fall under Section 211, he's really not providing day-to-day supervision.

[00:28:38] Speaker 05:
He testified that he has contact with employees in his group only one to two times per week,

[00:28:43] Speaker 05:
or less.

[00:28:44] Speaker 05:
Really, it's only on an as-needed basis.

[00:28:47] Speaker 05:
He has no role in evaluating employees, disciplining employees, making schedules.

[00:28:51] Speaker 05:
Really, it was just what he does pertaining to approving leave requests that qualified him as a 211 supervisor.

[00:29:00] Speaker 05:
I would also note that Bill Kositz had been the previous manager at the Hillsboro facility above Holmes and all of the employees at the Hillsboro facility.

[00:29:12] Speaker 05:
He left the company in 2017 and was not replaced.

[00:29:15] Speaker 05:
His office remained vacant and fully equipped so that managers visiting from Alaska could use his office.

[00:29:22] Speaker 05:
Managers, including Brewer and Took, the two I mentioned, rotated through his office on a daily basis.

[00:29:28] Speaker 05:
And in the company's brief, they note that since the closing of the record, Brewer has actually moved to Oregon and continues working out of that facility, which just underscores the point that

[00:29:40] Speaker 05:
whether Brewer was located in Alaska or Oregon, he was the one providing supervision to that group.

[00:29:46] Speaker 01:
Do you have a comment on this arbitration that's ongoing, I guess, between the union and the employer and to whether

[00:29:55] Speaker 01:
It's a proper ordering of decisions since they seem to involve the same question coming from different angles, but the same question as to whether this unit is recognized by the regional director here and the board is properly included as part of the Alaska group.

[00:30:14] Speaker 05:
Sure.

[00:30:14] Speaker 05:
And I'll preface it by saying that I'm not as familiar with the proceedings as Mr. Adlong and maybe not as

[00:30:20] Speaker 05:
Prepare to answer the question as I wish I might be.

[00:30:23] Speaker 05:
However, what I would say is that this is a litigation that's been going on for a few years now.

[00:30:27] Speaker 05:
These employees voted in 2018 to be represented by the union.

[00:30:31] Speaker 05:
And the board went through the process to find facts and find that it was appropriate for them to be included in the unit.

[00:30:41] Speaker 05:
And they voted that, yes, they do want to be included.

[00:30:44] Speaker 05:
I think that to defer and wait for an arbitration decision would be to delay

[00:30:49] Speaker 05:
employees' rights under the Act, and I don't see any reason to do that.

[00:30:53] Speaker 05:
I don't have any legal authority saying that the court must wait for the arbitration decision.

[00:30:58] Speaker 05:
I don't see why that would be the case.

[00:31:00] Speaker 01:
Is the law speaking one way or the other as to what the order should be?

[00:31:04] Speaker 05:
No, the board is seeking enforcement of its order here, and I think that the order should be enforced in this court.

[00:31:10] Speaker 05:
I see no reason why the arbitration should take precedence over that.

[00:31:17] Speaker 05:
So thank you, Your Honor, for your time.

[00:31:19] Speaker 05:
The board requests that this court enforce the order.

[00:31:24] Speaker 05:
Thank you.

[00:31:25] Speaker 03:
Thank you, Council.

[00:31:26] Speaker 03:
Mr. Adlong, we'll give you the two minutes you asked for for rebuttal.

[00:31:31] Speaker 04:
Thank you.

[00:31:32] Speaker 04:
I'd like to address a couple of issues very quickly.

[00:31:34] Speaker 04:
First, with respect to the strategy, had the regional director found that the unit was not appropriate for a globe,

[00:31:43] Speaker 04:
It had the full discretion to direct an election in that standalone unit, which would not have resulted in any request for review or any objections from the employer.

[00:31:52] Speaker 04:
So there were two options.

[00:31:53] Speaker 04:
He was not choosing between dismissing the petition or adding the Alaska based employees.

[00:31:59] Speaker 04:
He could have directed an election in the standalone unit petition for.

[00:32:03] Speaker 04:
Second, when you consider the appropriate unit analysis,

[00:32:10] Speaker 04:
All the authority cited by the board says that the board can determine an appropriate unit.

[00:32:16] Speaker 04:
All those cases come up in a regular RC petition.

[00:32:20] Speaker 04:
None of them occur in the self-determination context.

[00:32:25] Speaker 04:
In the self-determination context, you ask if it's an identifiable segment.

[00:32:30] Speaker 04:
If it is not an identifiable segment, as the regional director's decision states, it ends the analysis.

[00:32:36] Speaker 04:
You don't conduct a community of interest analysis.

[00:32:38] Speaker 04:
That doesn't necessarily mean the petition

[00:32:40] Speaker 04:
is dismissed, it just means that you do not add them to the group.

[00:32:44] Speaker 01:
Finally, as it concerns the community of interest... What about the seventh circuit state farm decision?

[00:32:51] Speaker 01:
Why isn't that the same as what happened here?

[00:32:56] Speaker 01:
That was a unit definition case.

[00:32:59] Speaker 04:
That was a unit determination.

[00:33:01] Speaker 04:
Well, in this case, I would say we're distinct because of the fact that

[00:33:09] Speaker 01:
That case had to do with Well, I'm just saying this principle about the board's ability to Original director on the board than a firm here to identify a unit different than what the party's proposed I thought you were saying doesn't apply in the self-determination context, but that's exactly what was going on in state farm Well, what I'm saying is is when you look at this case decided by the board the authority that they cited All of it none of it speaks to a self-determination context all of it goes to cases

[00:33:39] Speaker 04:
that had to do with a standard RC petition.

[00:33:42] Speaker 04:
And that's what I was speaking to.

[00:33:44] Speaker 01:
Standard RC?

[00:33:44] Speaker 01:
What's an RC petition?

[00:33:47] Speaker 04:
A petition for an election, they are all called RC petitions.

[00:33:51] Speaker 01:
That's not what was going on in State Farm?

[00:33:55] Speaker 04:
Each petition for an election for a unit will always be an RC.

[00:33:58] Speaker 04:
It can have an Armored Globe component to it.

[00:34:02] Speaker 04:
So I think, for example, every case will have

[00:34:06] Speaker 04:
This one was 19 RC, a bunch of numbers.

[00:34:09] Speaker 04:
Every one will be an RC.

[00:34:12] Speaker 04:
So that's what I'm speaking to.

[00:34:14] Speaker 04:
It's the standard reference to an election petition.

[00:34:20] Speaker 03:
Okay.

[00:34:22] Speaker 03:
Okay.

[00:34:23] Speaker 03:
Thank you, council.

[00:34:25] Speaker 03:
We have your argument.

[00:34:26] Speaker 03:
Thank you to both council.

[00:34:27] Speaker 03:
We'll take this case under submission.