[00:00:01] Speaker ?:
Okay.

[00:00:05] Speaker ?:
Okay.

[00:00:14] Speaker ?:
Okay.

[00:00:50] Speaker 05:
Good morning.

[00:01:14] Speaker 05:
Good morning.

[00:01:15] Speaker 05:
May it please the court, I'm Harriet Lipkin with DLA Piper.

[00:01:18] Speaker 05:
here today for Palm's Casino Resort.

[00:01:22] Speaker 05:
The employer and I asked to reserve four minutes for rebuttal.

[00:01:27] Speaker 05:
In the case of Barr, the union filed a petition seeking an immediate election for a bargaining unit composed of non-gaming resort employees.

[00:01:37] Speaker 05:
The employer in turn sought dismissal of the petition because it was premature.

[00:01:42] Speaker 05:
The employer was in the throes of massive renovation, rehabilitation,

[00:01:47] Speaker 05:
improvement and expansion, resulting in the forecasted tripling of daily visitors and a planned 25% increase in the bargaining unit.

[00:02:02] Speaker 05:
Nonetheless, contrary to NORB law, requiring a thoughtful balancing of objectives and the avoidance of any hard and fast rules, the NORB imposed a hard and fast rule, rigidly applying a mathematical formula

[00:02:18] Speaker 05:
To summarily conclude that the then-current compliment of employees was substantial and representative, and consequently, the election would proceed without awaiting the hiring of the truly substantial and representative compliment of bargaining unit employees.

[00:02:37] Speaker 05:
The NLRB's failure to follow its own precedent was without basis or explanation, arbitrary, and abuse of discretion and not rational.

[00:02:47] Speaker 05:
Neither the ballot totals nor the NLRB's failure to offer reasoned decisions in its prior cases justifies what it did here.

[00:02:59] Speaker 05:
And this court may not substitute its reasoning to remedy the NLRB's dearth.

[00:03:06] Speaker 05:
Therefore, the petition for review should be granted and the NLRB's order should be denied enforcement.

[00:03:12] Speaker 04:
So is it your position that the board's previous

[00:03:18] Speaker 04:
precedent in which it established this formula.

[00:03:23] Speaker 04:
His bereft of any explanation as to why it decided this was the appropriate way to proceed given the multitude of factual scenarios that could occur and given who knows what will happen by the time you finish your construction and get this larger unit and et cetera.

[00:03:46] Speaker 05:
No, our point, Your Honor, is simply that in this instance, what we have said is that the NLRB took a shortcut.

[00:03:54] Speaker 04:
I understand.

[00:03:55] Speaker 04:
But you also said it's acting contrary to its precedent.

[00:04:00] Speaker 04:
And I wonder how you can make that argument when the board has explained why it adopted this type of approach, but maybe not to your satisfaction and certainly not in your case.

[00:04:18] Speaker 05:
Your Honor, we don't dispute that the NLRB has clearly stated how any analysis in this kind of case should proceed.

[00:04:26] Speaker 05:
The labor board's been clear on that.

[00:04:28] Speaker 05:
Our issue is that in this instance, the labor board took a shortcut, the labor.

[00:04:35] Speaker 03:
So is there a case that you would point to that took the analysis that you are seeking?

[00:04:44] Speaker 03:
And I take it as the Toto case is the main one?

[00:04:48] Speaker 03:
But that was in a situation like this where the numerical benchmarks were met and the board went on and said, but if we look at the broader circumstances, we don't think that there is a substantial and representative segment.

[00:05:09] Speaker 03:
I don't see a case that does have the benchmarks met but then looks at the factors to say, but actually that's not enough.

[00:05:16] Speaker 03:
I think Toto is the other way around, right?

[00:05:18] Speaker 05:
It is the other way around, but Your Honor, what we would do is to ask you to take a look at some industries, which we cited in our brief.

[00:05:27] Speaker 05:
In some industries, interestingly enough, the Labor Board determined to dismiss the petition, and it determined that the petition for a bargaining unit, that complement, it found to be substantial, so that number was satisfied.

[00:05:46] Speaker 05:
but it found the compliment not to be representative.

[00:05:51] Speaker 05:
And our point here is, certainly, admittedly, the employer did not intend to modify the job titles of the employees.

[00:06:03] Speaker 05:
For example, in the petition for bargaining unit, there are guest room attendants.

[00:06:08] Speaker 05:
Those are the people who clean and maintain the hotel guest rooms.

[00:06:13] Speaker 05:
And the employer was adding 60 guest rooms, luxury villas and suites.

[00:06:20] Speaker 05:
The work was going to be different by the guest room attendants working in those rooms.

[00:06:26] Speaker 05:
And what we would say is that very analysis for some industries where the labor board there said that the compliment was not representative, that provides the basis to say,

[00:06:42] Speaker 05:
In this case, in the Palms case, the compliment was not representative.

[00:06:48] Speaker 03:
So there was evidence of a prospective increase in the number of job classifications that you think the board erroneously overlooked or

[00:07:01] Speaker 03:
lack substantial evidence in its analysis of the job classifications?

[00:07:05] Speaker 05:
What we think is that the Labor Board in simply looking at the numbers themselves in its applicability section of the decision and that is found at Joint Appendix 166 through 167, there the Labor Board relied exclusively upon numbers and said our standard is

[00:07:28] Speaker 05:
30% of the unit, 50% of the job classifications, it's satisfied here.

[00:07:33] Speaker 05:
The Labor Board took no dive into the facts.

[00:07:36] Speaker 05:
Although the regional director recited the facts and the regional director described changes in the steakhouse, changes in the guest room, changes on the casino floor, the regional director did not then say

[00:07:50] Speaker 05:
And if there are going to be these changes, we need to engage in the analysis that is required, which is the competing, the balancing of competing objectives, the avoidance of hard and fast rules.

[00:08:02] Speaker 05:
Avoid the strict mathematical formula and consider what these people will be doing.

[00:08:08] Speaker 05:
Compare the current situation to what it will look like post, after these changes are made.

[00:08:18] Speaker 00:
I just had this question.

[00:08:19] Speaker 00:
So on 166 to 167, the decision does say applying the standards set forth above.

[00:08:27] Speaker 00:
And the standards set forth above include all the various considerations that you think should be taken into account.

[00:08:35] Speaker 00:
And so if the decision had said on the next page, as set forth above based on the estimates provided in the record, the employer currently applies more than 30%,

[00:08:48] Speaker 00:
and then for employees, and then meets the 50% threshold for classifications, and then added just another reference to the considerations.

[00:08:58] Speaker 00:
Based on that and the considerations enumerated above, I find that the employer and employees are substantial and represent confident employees.

[00:09:07] Speaker 00:
Then your argument, you wouldn't have the same argument you have now because those considerations would have been taken into account in the way that you think they should have been.

[00:09:17] Speaker 00:
Or am I not understanding your view?

[00:09:21] Speaker 05:
Well, Your Honor, interestingly enough, I read the phrase as set forth above to go to the paragraph immediately above.

[00:09:29] Speaker 05:
I did not understand that what the Labor Board was attempting to do was to take a shortcut and to wrap it into that analysis.

[00:09:35] Speaker 05:
But regardless, what we maintain, Your Honor, is that the analysis that is required was not here.

[00:09:42] Speaker 05:
The Labor Board attempted to take a shortcut.

[00:09:45] Speaker 05:
The Labor Board did not take us through

[00:09:48] Speaker 05:
It lists in Joint Appendix 164 the various aspects of the renovation, improvement, and expansion of the operation.

[00:10:01] Speaker 05:
And the Labor Board did not tell us how those changes related to the issues associated with the representative nature of the bargaining unit.

[00:10:16] Speaker 03:
I'm not sure I'm entirely following.

[00:10:19] Speaker 03:
So I do follow that you're saying it's the job classifications that are likely to become perhaps subdivided or there would be an addition of some job classifications and that the board did consider the intent to add five new job classifications and talks about that.

[00:10:39] Speaker 03:
And there are some incumbents and some

[00:10:45] Speaker 03:
new employees to be hired into those, and then talks on 166 about how it's analyzing that under Toto Industries, which is the case that you think provides the more nuanced analysis.

[00:11:01] Speaker 03:
So it did take into account the number of job classifications that are expected to be filled, but it didn't take account of them in the way that you

[00:11:14] Speaker 03:
would have wished?

[00:11:18] Speaker 05:
Most certainly.

[00:11:19] Speaker 05:
But our point here is that the incumbent positions, there was going to be a modification in substance and a modification in process in the work that they do.

[00:11:34] Speaker 05:
That is something that would be unavoidable when the employer spends $620 million to make this expansion, renovation, and improvement

[00:11:44] Speaker 05:
of its facility and its operation.

[00:11:47] Speaker 03:
But I understood that from reading the board's opinion, that you had so claimed and identified these additional jobs, and that the board ends up in looking at them saying, but we still think that the incumbent workers are sufficiently representative.

[00:12:04] Speaker 03:
It's not such a sea change in the nature of the workforce.

[00:12:10] Speaker 03:
And I'm just trying to tease out

[00:12:13] Speaker 03:
What is the kind of analysis that's missing that you would want and how we could reach it under this very deferential standard that we have?

[00:12:25] Speaker 05:
We understand that there is a tremendous deferential standard here.

[00:12:28] Speaker 05:
And what we submit, Your Honor, is that the labor board's decision is lacking in terms of reasoning.

[00:12:35] Speaker 05:
And most certainly, you cannot substitute your reasoning for the board in order to remedy its turf.

[00:12:41] Speaker 05:
What we maintain is,

[00:12:43] Speaker 05:
that the Labor Board failed to address the modifications in its operation and failed to consider, under the standards established in Toto and the few other cases where this is discussed, how this topic should be addressed.

[00:13:00] Speaker 04:
All right.

[00:13:00] Speaker 04:
Well, why don't we hear from the board?

[00:13:25] Speaker 04:
Good morning.

[00:13:27] Speaker 02:
Good morning.

[00:13:27] Speaker 02:
May I please record Jessica Mendoza for responding and classifying the National Labor Relations Board.

[00:13:33] Speaker 02:
I will be sharing the last two minutes of my time with the intervener.

[00:13:37] Speaker 02:
The issue in this case is whether the board abuses discretion in directing an election when Palms Casino Resort, the company, employs 75% of its future employee, complementing 86% of expected classifications.

[00:13:50] Speaker 02:
In expanding unit cases such as this one,

[00:13:52] Speaker 02:
The board applies a substantial and representative test that balances the objective of, on one side, ensuring maximum employee participation in the selection of a bargaining agent, and on the other side, permitting employees to be represented as quickly as possible.

[00:14:06] Speaker 02:
In striking that balance, the board generally considers that if at least 30% of its future employee complement is employed in at least 50% of future job classifications, then it is appropriate to direct an election.

[00:14:19] Speaker 02:
Here the company employs 75% of its future employee compliment and 86% of its expected classifications which by far exceeds the 30-50 guideline.

[00:14:30] Speaker 02:
Now I would like to move on to discuss the company's misinterpretation of the case total industries.

[00:14:35] Speaker 02:
First I will dispute what the company said in its brief about the case total industries being a nine factor test.

[00:14:41] Speaker 02:
The list that they were compiled from past cases in total industries is not prescriptive.

[00:14:46] Speaker 02:
It's not a list of requirements such as a multi factor test.

[00:14:48] Speaker 02:
and instead it is a survey of what has been done in past cases.

[00:14:52] Speaker 02:
In any event, most of the items in this list are mainly quantitative.

[00:14:56] Speaker 02:
For example, items one, two, and three, they compare the size of the present workforce with the size of the future workforce, and they also look at the employee complement eligible to vote.

[00:15:08] Speaker 02:
Also numbers seven and eight, those are job classifications currently filled and job classifications expected to fill.

[00:15:13] Speaker 02:
That's just another way of comparing the present job classifications with future job classifications.

[00:15:18] Speaker 02:
All of these nine factors are factors that the board can consider when they are relevant.

[00:15:23] Speaker 02:
For example, in the case Clement that the company cited and we cited, in that case the board gave special consideration to the construction industry because they recognize the need to accommodate the fluctuating nature and unpredictable duration of construction activities.

[00:15:39] Speaker 02:
However, generally the board adheres to the 30-50 guideline.

[00:15:44] Speaker 02:
For example, in the case total industries, the case that describes the nine items,

[00:15:48] Speaker 02:
the board there based its decision to direct an election because the employee compliment at that time was 60%.

[00:15:57] Speaker 02:
Similarly, three years after the case to the industry, the board in Yellowstone decided to direct an election when the employee compliment at that time was 38%.

[00:16:09] Speaker 02:
So this is the legal argument that the company makes, that the board must march through this list of nine items as if it was a checklist.

[00:16:16] Speaker 02:
However, the board has never done that before.

[00:16:19] Speaker 02:
Now, the company also makes a factual argument.

[00:16:23] Speaker 02:
Specifically, it claims that the board failed to discuss the fact that the suspension was immediate.

[00:16:29] Speaker 02:
However, the record shows that the company will not have reached its full complement of employees until the third board of 2019, that's 17 months after the hearing date.

[00:16:39] Speaker 02:
Just to put in your perspective, the board in Yellowstone directed an election

[00:16:45] Speaker 02:
even when the employer's projected expansion was scheduled to be completed within the next two quarters.

[00:16:51] Speaker 02:
That's because the then current workforce was 38%.

[00:16:55] Speaker 02:
So it stands to reason that if two quarters is not long enough of an expansion to warrant delaying an election, six quarters, as in this case, is not an immediate enough expansion to warrant delaying an election.

[00:17:11] Speaker 02:
In conclusion, the company fails to show that the board abuses discretion by not addressing each of the nine factors compiling total industries.

[00:17:18] Speaker 02:
And it also fails to show how even if all the factors were applied, the board's decision would change as the defining and substantial represented the compliment.

[00:17:26] Speaker 03:
So isn't that the gist of it?

[00:17:28] Speaker 03:
That if the employer had presented evidence, for example, that the number of job classifications required different skills,

[00:17:41] Speaker 03:
from those that were currently filled or the number of job classifications that are expected to be filled, like that there's something about the incoming employees that qualitative about their anticipated work, you would have had to address that.

[00:17:58] Speaker 03:
In fact, and presumably did look at the new, at the proffered anticipated job classifications.

[00:18:08] Speaker 03:
the board would have had to look at that and say, is this a factor that's gonna change the applicability of the representativeness?

[00:18:18] Speaker 03:
I'm asking this in a really unclear way, I apologize.

[00:18:20] Speaker 03:
But it seems to me that if there's evidence relevant to those factors, that it would make sense that the board would have to address them.

[00:18:27] Speaker 03:
And the question is, was there evidence relevant to those factors that would have militated in a different direction?

[00:18:33] Speaker 02:
Yes, Your Honor, there was evidence presented that there will be five new classifications, and that is what the board considers.

[00:18:39] Speaker 02:
So that is how we came up with the number 86%, because at the time of the hearing, the company employed 31 out of 36 future job classifications.

[00:18:53] Speaker 02:
There has been no evidence beyond those five new classifications of what other new classifications there would have been.

[00:18:59] Speaker 03:
So is it your position that if that numerical threshold is met and it's not even close that the board does not also consider the type of skills in the anticipated job classifications, that it doesn't need to do that in a case in which the benchmark numbers are clearly to the north of the, I mean the actual numbers in the record are clearly to the north of the benchmark?

[00:19:28] Speaker 02:
I will say that the board considers all of the factors that are presented that enter into evidence.

[00:19:36] Speaker 02:
And here, I know the company says there have been factors that have been ignored.

[00:19:44] Speaker 02:
But besides the immediacy factor, I have not seen the company site or point to any factor that has been ignored, that has been presented into evidence.

[00:19:57] Speaker 03:
I thought that Ms.

[00:19:58] Speaker 03:
Lupkin was saying that some of the jobs were going to be different because there would be suites or cottages rather than rooms or, you know, that some of the... And that's correct.

[00:20:07] Speaker 02:
And that's a factor that was considered what new classifications the employer will have.

[00:20:12] Speaker 02:
And if there is any additional job classification that has not been presented into evidence or it has not been pointed, it has not been indicated in the opening brief.

[00:20:21] Speaker 00:
You made an argument about the temporal proximity.

[00:20:26] Speaker 02:
Yes, because that was an argument that was made in the opening brief.

[00:20:31] Speaker 02:
In the opening brief, the company is saying this change was going to be immediate, so why not wait to hold the election?

[00:20:37] Speaker 02:
And what I was explaining is

[00:20:39] Speaker 02:
If two quarters, in the eyes of the board, if two quarters is not immediate enough of an expansion, then what makes you think, company, that six quarters is an immediate enough extension to hold holding an election?

[00:20:52] Speaker 00:
Yeah, which makes sense.

[00:20:56] Speaker 00:
It's not reflected.

[00:20:58] Speaker 00:
That point is not reflected in the reasoning of the decision, right?

[00:21:01] Speaker 02:
That point is not reflected.

[00:21:04] Speaker 02:
I wouldn't want to speculate why it was not reflected, but I would think maybe it was just so obvious that they didn't point it out.

[00:21:14] Speaker 03:
If there's no more questions, you're on.

[00:21:17] Speaker 03:
I just want to be clear on your position about what the board needs to consider in what kind of case.

[00:21:26] Speaker 03:
If the threshold proportions of the

[00:21:33] Speaker 03:
the employee complement currently versus what's anticipated, the number of job classifications currently and what's anticipated, if the current numbers are sufficiently robust, must the board also consider the nature of the new jobs, the time in which the onboarding is expected, or just doesn't even need to consider those other factors?

[00:22:01] Speaker 02:
I will say that the board has to consider everything that is relevant in each case.

[00:22:06] Speaker 02:
If, for example, the nature of the industry is relevant, then the board will discuss that.

[00:22:12] Speaker 02:
But there wasn't any argument here made as to why the nature of the industry, of the casino industry or the hotel industry is different to any other industry.

[00:22:22] Speaker 02:
So in the board to the industries, as I was saying before, presented these nine factors as a way to say, these are things that can be considered

[00:22:30] Speaker 02:
But they don't need to be all considered in all cases.

[00:22:34] Speaker 02:
And in fact, the court has never done that before, where they go one, two, three, four, and through all the nine factors and say, this one doesn't apply, or this one does.

[00:22:46] Speaker 03:
So they're making some judgments about what is useful analytically among those factors, given the nature of the evidence in the case.

[00:22:55] Speaker 02:
That's correct, Your Honor.

[00:22:58] Speaker 03:
All right.

[00:23:00] Speaker 04:
we'll hear from.

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

[00:23:26] Speaker 01:
May it please the Court, Your Honors, Eric Myers from the Local Joint Executive Board of Las Vegas, consisting of the Culinary Workers Union and the Bartenders Union Local 165.

[00:23:37] Speaker 01:
I'd like to try to address some of the questions that came out from the panel.

[00:23:43] Speaker 01:
First of all, there is no multi-factor test in any of the board decisions.

[00:23:49] Speaker 01:
The decision that the employer relies upon Toto Industries, it was a regional director decision, the board denied review of the decision, and the regional director listed several factors that the board has considered in previous cases where those factors are relevant.

[00:24:10] Speaker 01:
not that those factors are always considered, but where they are relevant and in fact in total industries having recited those factors, the regional director then looked at the numbers and said, based on these numbers, we think there is a substantial and representative complement of employees.

[00:24:30] Speaker 01:
The regional director in this case did no different than the regional director did in total industries or no different than the board has done in any single case involving the expanding unit doctrine or the relocation doctrine or any of these instances where the substantial representative issue comes up.

[00:24:54] Speaker 01:
I'd like to address the issue of new work, what the new work

[00:24:58] Speaker 01:
was going to require, because council made the representation that, quote, the work was going to be different, and that, quote, there's going to be new process and substances of work.

[00:25:10] Speaker 01:
I may not have quoted the second exactly.

[00:25:14] Speaker 01:
Let's be clear what the evidence said.

[00:25:16] Speaker 01:
There was no evidence of any new nature of work.

[00:25:20] Speaker 01:
The five classifications that were going to be added, three of them were Baker classifications.

[00:25:27] Speaker 01:
classifications, Baker 1, Baker 2, and Baker 3.

[00:25:32] Speaker 01:
One was a VIP steakhouse captain, and one was a VIP beverage hostess or server, beverage server.

[00:25:43] Speaker 01:
All of this work was of the very same kind that was already being performed.

[00:25:48] Speaker 01:
Nothing new.

[00:25:49] Speaker 01:
The idea that there was going to be new luxury suites, sure, that may have increased the work for housekeeper,

[00:25:56] Speaker 01:
and therefore militating in favor of an immediate representation election so that their interests could be represented during this critical period of renovation.

[00:26:06] Speaker 01:
But it implicated no new kinds of work processes or at least there was no evidence at all of that in the record.

[00:26:15] Speaker 01:
An example in 10 seconds, if the employer had opened up

[00:26:20] Speaker 01:
let's say a new stadium for the Las Vegas Raiders in Las Vegas and operated the hotel and the stadium for the Raiders, we would be talking about potentially a very substantial different direction of the work.

[00:26:33] Speaker 03:
Can I ask you if in a case like this that the employees have elected to be represented and when the employer objects and there's a case that goes before the board and then

[00:26:49] Speaker 03:
they petition and bring that to us.

[00:26:51] Speaker 03:
In all this time, the employees are not represented?

[00:26:56] Speaker 03:
What goes on in the interim?

[00:26:59] Speaker 01:
Unfortunately, and it's been, I've cited references of this very court of the deleterious effect of delay on employee section seven rights.

[00:27:10] Speaker 01:
We've been engaged in the delay pattern.

[00:27:13] Speaker 01:
But what happens under board law is the following.

[00:27:16] Speaker 01:
From the date of the election,

[00:27:18] Speaker 01:
Any unilateral change that occurs can be the subject of an unfair labor practice charge.

[00:27:26] Speaker 01:
And then when this long litigation process is over, the employer will be liable for unilateral changes that it has made from the date of the election until today.

[00:27:38] Speaker 01:
The board says that the employer acts at its peril in making unilateral changes during the time frame

[00:27:47] Speaker 01:
from the election day to the end of its litigation process.

[00:27:51] Speaker 03:
And what does that mean, it'll be liable for unilateral changes?

[00:27:54] Speaker 01:
Well, for example, it increases the cost of medical benefits without bargaining with the union.

[00:28:02] Speaker 01:
That would be an example that it has unilaterally imposed higher costs upon employees for medical co-premiums.

[00:28:10] Speaker 03:
So the union is in place during this period?

[00:28:13] Speaker 01:
We are not in place.

[00:28:14] Speaker 01:
We are in the wings.

[00:28:16] Speaker 03:
Really, so not representing the employees during this time?

[00:28:18] Speaker 01:
We don't get to represent employees.

[00:28:20] Speaker 01:
During the pendency of the... We get to file new unfair labor practice charges saying, hey, you remember us, you're supposed to be recognizing us, you're not doing it.

[00:28:28] Speaker 03:
That's basically in the nature of preserving all those objections.

[00:28:30] Speaker 01:
We preserve our objections during the two years it takes for us to win an election by an overwhelming majority and the time when we finally get our status as bargaining representative.

[00:28:42] Speaker 03:
And then when you get your status, you have this huge inbox of

[00:28:46] Speaker 03:
disputes that have to be dealt with.

[00:28:47] Speaker 01:
Well, and to that point, there's often dissatisfaction because employees look at the union and say, where have you been?

[00:28:54] Speaker 01:
Well, we've been here in the DC circuit.

[00:28:58] Speaker 03:
And so there must, I mean, some things like increasing cost of medical benefits, that can be cashed out.

[00:29:02] Speaker 03:
But what about things that are not monetary?

[00:29:04] Speaker 03:
And you say they're liable, like hours of work or something, scheduling.

[00:29:09] Speaker 01:
The standard board remedy is to post a notice on the wall

[00:29:15] Speaker 01:
that says we will not do these things without bargaining with the union.

[00:29:23] Speaker 04:
All right.

[00:29:24] Speaker 04:
Thank you.

[00:29:24] Speaker 01:
Thank you.

[00:29:38] Speaker 05:
Thank you, Your Honors.

[00:29:45] Speaker 05:
We simply want to be clear.

[00:29:48] Speaker 05:
We're not suggesting that every one of the TOTO factors need be addressed in every case.

[00:29:55] Speaker 05:
What needs to happen though is that there must be thoughtful, reasoned analysis.

[00:30:01] Speaker 05:
And I took the opportunity to take another look at the regional director's decision

[00:30:06] Speaker 05:
in light of the questions from the panel.

[00:30:09] Speaker 05:
And we stand by where we have stood before, which is the regional director recites the relevant facts, he recites the law, and then he simply, summarily concludes, well, the 3050 standard, it's satisfied.

[00:30:27] Speaker 05:
And our... I don't want to interrupt, keep going.

[00:30:30] Speaker 05:
Our point here is,

[00:30:33] Speaker 05:
We disagree with the 30 standard, but yes, we acknowledge it's satisfied here.

[00:30:39] Speaker 05:
But in this instance, what we say is the representative compliment is not satisfied here.

[00:30:47] Speaker 05:
And our point is when the modifications that were identified in the hearing are present as they are here,

[00:30:57] Speaker 05:
this significant expansion, improvement in operations, that most certainly, even if there are not changes in job titles, that there must be changes in job responsibilities.

[00:31:13] Speaker 05:
And the regional director failed to consider that.

[00:31:17] Speaker 05:
He failed to discuss that.

[00:31:19] Speaker 05:
And in that way, his decision is lacking.

[00:31:23] Speaker 05:
And that is, that's our issue.

[00:31:24] Speaker 03:
So here's how you can help me, Ms.

[00:31:26] Speaker 03:
Lipkin.

[00:31:27] Speaker 03:
Can you point to the factor that should have been considered and how the board should have considered it in a way that's supported by the record and it would have changed the outcome?

[00:31:44] Speaker 05:
It is accurate to say that total industries is not the end all and be all of the factors.

[00:31:49] Speaker 05:
What we would do is to take a look at the total factors and to say if you take a look at the industry because the total factors tell us

[00:31:57] Speaker 05:
that industry is one of the factors to be considered.

[00:32:00] Speaker 05:
And also take a look at new job classifications.

[00:32:06] Speaker 05:
And we're not saying that there were going to be new job classifications, because the employer certainly did not argue that.

[00:32:12] Speaker 05:
But we don't believe that the intention was to say form over substance.

[00:32:19] Speaker 05:
If you don't change a job title, if you don't create a new job title, that then you are precluded from making your point.

[00:32:26] Speaker 03:
Our point is- In terms of the nature of the industry, I take it that's one you're really leaning on, the nature of the industry?

[00:32:32] Speaker 05:
We think that's important here.

[00:32:34] Speaker 03:
What about the nature of the industry should have been acknowledged and how would that acknowledgement change the analysis of the substantial and representative complement?

[00:32:44] Speaker 03:
I really want you to focus on that.

[00:32:46] Speaker 05:
Staying for an example of the third factor that the regional director noted,

[00:32:52] Speaker 05:
in his list of things that the palms was going to change, add premium ultra luxury suites and approximately 60 new guest rooms, adding at least 36 new employees.

[00:33:05] Speaker 05:
What we're saying is those new employees are the same job title, the same guest room attendants that are in the petition for bargaining unit.

[00:33:13] Speaker 05:
But what the industry in Las Vegas of

[00:33:19] Speaker 05:
premium ultra-luxury suites, we understand it's going to require different work and different process to achieve that work in the cleaning and the maintaining of the guest rooms.

[00:33:31] Speaker 05:
Like what?

[00:33:34] Speaker 04:
Higher grader sheets, higher grader towels, but there'll still be cleaning rooms.

[00:33:41] Speaker 05:
We would maintain, Your Honor, that it is more than cleaning rooms in an ultra-luxury suite.

[00:33:48] Speaker 04:
Polishing silver, I mean.

[00:33:50] Speaker 05:
There could be pinball machines.

[00:33:53] Speaker 05:
There is a basketball court.

[00:33:55] Speaker 05:
There are pool tables.

[00:33:59] Speaker 05:
There are many television sets.

[00:34:01] Speaker 05:
There are balconies.

[00:34:02] Speaker 05:
There are hot tubs on balconies looking out on the Las Vegas street.

[00:34:05] Speaker 03:
Is there evidence of that in the record?

[00:34:08] Speaker 05:
No, you won't.

[00:34:09] Speaker 03:
And is there any explanation why those are considered different work even though the job title is identical?

[00:34:18] Speaker 03:
The employer's choice not to title that differently and create a different job description, right?

[00:34:24] Speaker 05:
That's correct, Your Honor.

[00:34:25] Speaker 05:
And we would note that the issue with respect to the prematurity of the filing was when the employer was in the throes of its expansion.

[00:34:37] Speaker 05:
The owner had only acquired this property two years earlier.

[00:34:43] Speaker 05:
It was investing this significant amount of money

[00:34:48] Speaker 05:
to modify the property and all of the issues associated with who will be doing what had not been addressed.

[00:34:56] Speaker 05:
But most significantly, what was clear was that there were going to be significant changes in the operation and in the facility and these employees were going to be doing the work associated with that.

[00:35:10] Speaker 04:
But you just acknowledged it wasn't part of the record that they're going to be cleaning basketball courts.

[00:35:15] Speaker 04:
Cleaning hot tubs, I mean they're cleaning tubs.

[00:35:23] Speaker 05:
They are doing different work and it will be a different.

[00:35:26] Speaker 04:
But you didn't tell the board, apparently not you, but there is an evidence in the record about what the new jobs are.

[00:35:35] Speaker 05:
There was evidence that these modifications were going to be made.

[00:35:40] Speaker 05:
And what that means is that a conclusion must be reached as to whether the labor board is going to consider all of the factors.

[00:35:48] Speaker 04:
And the employer didn't know.

[00:35:50] Speaker 04:
That's what you just acknowledged.

[00:35:51] Speaker 04:
He didn't know.

[00:35:52] Speaker 05:
That's correct.

[00:35:53] Speaker 04:
So what is the board supposed to do with all these existing employees?

[00:35:57] Speaker 05:
What the board should do, as the board has told us, it must balance competing factors.

[00:36:05] Speaker 05:
One factor is the need to have an election as soon as possible to recognize the rights of the employees, but at the same time, on the flip side, not to have an election in such a manner that employees are left out of the process.

[00:36:19] Speaker 05:
But you acknowledged to Judge Pillard, didn't you?

[00:36:24] Speaker 04:
Essentially that there was no factor that the board didn't consider where there was evidence in the record that would have changed the outcome.

[00:36:33] Speaker 05:
What the Labor Board failed to consider was that the current production for the palms was going to vary from what the production would be in the future, and that the ultimate type of jobs, what would be ultimately done by those workers in the future, was different than the work that was done by those workers at the time of the hearing.

[00:36:58] Speaker 04:
All right, anything further?

[00:36:59] Speaker 05:
No, thank you, Your Honor.

[00:37:01] Speaker 04:
Thank you.

[00:37:01] Speaker 04:
We'll take the case under advice.