[00:00:02] Speaker 00:
Case number 20-1060 et al.

[00:00:04] Speaker 00:
Leggett and Platt, Inc.

[00:00:06] Speaker 00:
Petitioner versus National Labor Relations Board.

[00:00:09] Speaker 00:
Mr. Harper for Petitioner Leggett and Platt, Inc.

[00:00:12] Speaker 00:
Mr. Solem for Petitioner Keith Purvis.

[00:00:15] Speaker 00:
Ms.

[00:00:15] Speaker 00:
Sheehy for the respondents.

[00:00:18] Speaker 01:
Morning, counsel.

[00:00:18] Speaker 01:
Mr. Harper, please proceed when you're ready.

[00:00:21] Speaker 05:
Good morning, your honors, and may it please the court.

[00:00:23] Speaker 05:
My name is John Harper, and together with co-counselor Arthur Carter, we represent Petitioner Leggett and Platt in this matter.

[00:00:29] Speaker 05:
The National Labor Relations Board's critical error in this case is its insistence that the Levitt's last in time rule should apply, resulting in the imposition of a bargaining order, even though it held in Johnson Control's 368 NLRB number 20, that the last in time rule failed to satisfy the board's statutory goals of ensuring employee free choice and maintaining labor relations stability.

[00:00:55] Speaker 05:
As this court has repeatedly recognized at Scomas and Lee Lumber and elsewhere,

[00:00:59] Speaker 05:
Employee free choice is a core principle of the National Labor Relations Act.

[00:01:04] Speaker 05:
I want to discuss three primary points this morning.

[00:01:07] Speaker 05:
First, the board should have applied Johnson Controls retroactively to the facts of this case.

[00:01:13] Speaker 05:
Second, this court should simply deny enforcement to the board's order rather than remand it for a third bite at the apple.

[00:01:19] Speaker 05:
And third, in the alternative, the court should deny enforcement to the NLRB's bargaining order and remand the case under SCOMAS v. Sausalito.

[00:01:29] Speaker 05:
or stomas of Sausalito versus NLRB.

[00:01:33] Speaker 05:
Leggett will stand on this briefing with respect to the substantial evidence points it made regarding the union's petition and the alleged unlawful assistance to a subsequent decertification petition, but I'm happy to answer questions on those matters.

[00:01:46] Speaker 05:
First, turning to the issue of whether Johnson Control should have been applied retroactively.

[00:01:51] Speaker 05:
The board recognized in its decision below and has recognized elsewhere, retroactive application is the formal practice

[00:01:59] Speaker 05:
unless manifest injustice will result.

[00:02:02] Speaker 05:
In Johnson Controls, just as in this case, the Levitt's last in time rule would have resulted in the imposition of a bargaining order, except that in Johnson Controls, the board decided to overrule the Levitt's last in time rule, implement a new standard, and apply that standard retroactively.

[00:02:20] Speaker 05:
It applied the standard retroactively in Johnson Controls because, and I quote,

[00:02:24] Speaker 05:
The union's ability to rely on its dual signer evidence is the source of the very problems our new standard is meant to cure.

[00:02:31] Speaker 05:
So its loss is simply the inevitable consequence of curing the mischief the pre-existing law created.

[00:02:37] Speaker 05:
The board and Johnson Controls also recognize the Levitt's last in time standard had been subject to repeated criticism, including criticism by this court and SCOMUS.

[00:02:46] Speaker 05:
And so too here.

[00:02:47] Speaker 05:
The union is relying on the very same sort of dual signer evidence as is the board

[00:02:52] Speaker 05:
which creates the very same mischief and the very same criticism of the Levitt's last in time rule.

[00:02:57] Speaker 05:
Thus, the board is really trying to have it both ways.

[00:03:00] Speaker 05:
Either the Levitt's last in time rule is inconsistent with the board's statutory mandate or it is not.

[00:03:06] Speaker 05:
If it is, then that rule should have been applied consistently here because the operative facts are the same.

[00:03:12] Speaker 05:
Both cases involved employee submission of a majority petition to employer saying that they no longer wanted union representation.

[00:03:20] Speaker 05:
In both cases, the employer relied on that petition to tell the union it would withdraw recognition from the union when the bargaining agreement expired.

[00:03:27] Speaker 03:
Mr. Harper, could you just say a little bit more specifically what you think the problem is with the NLRB not applying this retroactively?

[00:03:40] Speaker 03:
Do you think that it is arbitrary, that it is contrary to law?

[00:03:46] Speaker 03:
an abuse of discretion, what standard are you applying for that?

[00:03:52] Speaker 05:
I think it is an arbitrary and capricious decision.

[00:03:54] Speaker 05:
The board does have discretion to determine retroactivity in its cases.

[00:04:00] Speaker 05:
Here, the board abused its discretion and acted arbitrarily in failing to apply Johnson Controls retroactively.

[00:04:08] Speaker 05:
And you see that because the facts of Johnson Controls and of this case are virtually the same in terms of the operative facts, number one,

[00:04:16] Speaker 05:
And number two, taking into account the board's explanation as to why it refused to apply Johnson Controls retroactively simply does not support the result.

[00:04:28] Speaker 05:
And for that, I mean, the board relied on two reasons why it was not going to apply Johnson Controls retroactively in this case.

[00:04:35] Speaker 05:
First, it said that it had.

[00:04:37] Speaker 03:
Could you speak up a little bit, Mr. Harper?

[00:04:39] Speaker 03:
Of course, please.

[00:04:40] Speaker 05:
Thank you.

[00:04:41] Speaker 05:
Of course.

[00:04:41] Speaker 05:
Is that better?

[00:04:42] Speaker 03:
Yes.

[00:04:43] Speaker 05:
All right.

[00:04:45] Speaker 05:
And I would say, let me back up, the force discretion is not unlimited.

[00:04:49] Speaker 05:
It may not act in a way that is arbitrary, capricious, or otherwise not in accordance with law.

[00:04:53] Speaker 05:
And so we would say that the board's decision not to apply Johnson Controls retroactively is arbitrary, is capricious, and is contrary to the law that it set forth in Johnson Controls.

[00:05:04] Speaker 05:
And it gave two reasons why it did not believe Johnson Controls should apply retroactively in this case.

[00:05:11] Speaker 05:
First, it said,

[00:05:12] Speaker 05:
that it had institutional reasons as to why Johnson Control should not apply retroactively.

[00:05:17] Speaker 05:
But it never identified those institutional reasons.

[00:05:20] Speaker 05:
It simply said they existed.

[00:05:22] Speaker 05:
Second, it said that it expected prompt compliance with its bargaining orders and that the party should have been bargaining here rather than leg it and exercising its statutory right to appeal.

[00:05:36] Speaker 05:
This reason has several problems.

[00:05:38] Speaker 05:
First, it ignores that board orders are not self-enforcing.

[00:05:42] Speaker 05:
If the board wants to have an enforceable order, it needs to come to this court.

[00:05:47] Speaker 05:
And Leggett and Platt had a right to appeal under 10f, which Leggett exercised that right.

[00:05:52] Speaker 05:
Second.

[00:05:52] Speaker 03:
Do you think, Mr. Harper, that the bargaining order here was an abuse of discretion after this court's decision in SCOMUS?

[00:06:03] Speaker 05:
I believe that the bargaining order was an abuse of discretion after this court's decision in SCOMUS.

[00:06:08] Speaker 05:
But I also believe that under Johnson controls,

[00:06:12] Speaker 05:
The bargaining order is really irrelevant because Johnson Controls should have applied at the board level.

[00:06:19] Speaker 05:
And at that board level, the board should have dismissed the unfair labor practice charge out of the way that Johnson Controls reads and is applied.

[00:06:29] Speaker 05:
And so I don't believe that this board even needs to get to the bargaining order issue, which is why it's an alternative argument for us.

[00:06:35] Speaker 05:
But should the court reach it, we believe that SCOMUS is dispositive here on nearly similar facts.

[00:06:41] Speaker 05:
and that the bargaining order under the reasoning of SCOMUS is an abuse of discretion for the reasons stated there.

[00:06:52] Speaker 05:
Turning back to the Johnson controls and why the board's reasoning is to know retroactivity is really can't withstand reason.

[00:07:02] Speaker 05:
It does just as your honor Judge Ralph mentioned, it ignores the fact that SCOMUS was in existence

[00:07:08] Speaker 05:
the very first time that the board decided this case and it was in existence the second time the board decided this case and johnson controls relied on this court's decision in scum is and stating that the levitt's last and time rule was inconsistent with the um with the statutory requirements of ensuring employee free choice and maintaining stable relations uh

[00:07:30] Speaker 05:
I'm sorry.

[00:07:31] Speaker 06:
You keep dropping your voice.

[00:07:33] Speaker 06:
If you could speak up again.

[00:07:34] Speaker 06:
You were doing fine after Judge Brown asked you to, but you're dropping again.

[00:07:38] Speaker 06:
Could you speak up?

[00:07:39] Speaker 05:
I apologize.

[00:07:40] Speaker 05:
I'm still getting used to the Zoom format.

[00:07:42] Speaker 05:
So I will continue speaking up.

[00:07:47] Speaker 05:
The board also argues that not complying with its bargaining order in this case somehow disrupts the bargaining relationship between the parties.

[00:07:57] Speaker 05:
But as the board recognized in Johnson controls,

[00:08:00] Speaker 05:
What disrupts the bargaining relationship between the parties is the Levitt's last in time rule that allows an employer like Leggett, that allowed an employer like Johnson Controls to unwittingly withdraw recognition while the union was sitting on evidence of a reacquired majority status.

[00:08:18] Speaker 05:
And that is what caused the disruption, not a failure to comply with the board's remedial order in this case.

[00:08:26] Speaker 05:
Next, the board says that the parties could have been bargaining and they could have reached an agreement

[00:08:30] Speaker 05:
here rather than leg it pursuing its right to appeal.

[00:08:34] Speaker 05:
This really points out a significant problem with the board's orders here.

[00:08:38] Speaker 05:
It defended its bargaining order the first time around on the grounds that that bargaining order only was imposed for a reasonable amount of time and thus had a limited impact on employee free choice under the act.

[00:08:50] Speaker 05:
But now it says that what the party should have done was bargain and enter into a collective bargaining agreement, which would have required, which would have imposed this union on employees

[00:09:00] Speaker 05:
for an extended period of time, up to three years.

[00:09:03] Speaker 05:
And that is the very problem with bargaining orders that this court has repeatedly identified, including identified in SCOMUS.

[00:09:11] Speaker 05:
So in conclusion, the board, we believe, is simply trying to have it both ways here.

[00:09:15] Speaker 05:
On the one hand, it says the Levitt's last in time rule does not comply with the statutory mandates.

[00:09:20] Speaker 05:
On the other hand, it says compliance with its bargaining order here, which is in violation of SCOMUS and which is in violation of its own decision in Johnson Controls,

[00:09:29] Speaker 05:
also comports with his statutory mandates, and it fails to adequately explain its reasons.

[00:09:34] Speaker 05:
We believe that this decision is arbitrary and capricious and against extant law as set forth in Johnson Controls.

[00:09:40] Speaker 05:
Turning to my next point, and I see I'm running short of time, we believe that the proper course here is for the court to deny enforcement and not remand this case.

[00:09:49] Speaker 05:
We believe that the outcome here is foreordained under the rule of Johnson Controls.

[00:09:54] Speaker 05:
In this sort of situation, as the Supreme Court has stated in NLRB v. Wyman-Gordon cited in our materials, the court has a discretion to simply deny enforcement to the board's order rather than remand this to the board for a third time so it can sit there for Lord knows how long while the parties wait and wait and wait for a resolution here.

[00:10:15] Speaker 05:
We believe that this court has the discretion to deny enforcement and bring it into this matter.

[00:10:20] Speaker 05:
I see my time is running out.

[00:10:22] Speaker 06:
What should we do then with the other

[00:10:25] Speaker 06:
Lester, if you would, ULPs that are discussed in the briefs.

[00:10:31] Speaker 05:
Yep.

[00:10:31] Speaker 05:
So the only other found ULP in this matter is an alleged unlawful assistance to a second decertification petition that was filed in June of 2017.

[00:10:40] Speaker 05:
And as we argued in the briefs, we do not believe that the board's finding on that is supported by substantial evidence.

[00:10:49] Speaker 05:
What we have there is we have

[00:10:51] Speaker 05:
a human resources manager interacting with a new employee and pointing that new employee to the decertification petitioner.

[00:10:58] Speaker 05:
The evidence is that the human resources manager pointed the employee to the decertification petitioner to be introduced to a supervisor.

[00:11:07] Speaker 05:
The employee didn't hear anything as to why he was being pointed to the decertification petitioner.

[00:11:14] Speaker 05:
And the way that the board got to a violation there was that it imposed an adverse inference on Leggett

[00:11:20] Speaker 05:
because it failed to ask the decertification petitioner about what was going on.

[00:11:23] Speaker 05:
But respectfully, it's not Leggett's burden of proof to prove an unfair labor practice violation against itself.

[00:11:30] Speaker 05:
The decertification petitioner was equally available to both parties.

[00:11:35] Speaker 05:
And the counsel for the general counsel failed to call and ask him questions, even though he was present.

[00:11:40] Speaker 01:
Thank you.

[00:11:41] Speaker 01:
Can I ask you just one quick question about the remedy?

[00:11:45] Speaker 01:
I don't want to presuppose anything, but on your argument about the remedy, if we deny enforcement of the board's order, then is not the natural upshot of that that we remand anyway?

[00:11:57] Speaker 01:
Doesn't that usually happen, or am I wrong about that?

[00:12:01] Speaker 05:
So we believe that if you remand the case, the only remand would be with a direction to dismiss the unfair labor practice charge.

[00:12:11] Speaker 05:
simple denial of enforcement stating that the board cannot enforce its order.

[00:12:17] Speaker 05:
The direction would simply be to remand for dismissal.

[00:12:22] Speaker 01:
Right.

[00:12:22] Speaker 01:
So then what you're talking about is the direction that's given, not the denial of enforcement, because the denial of enforcement itself doesn't dictate what happens to the case before the agency when it goes back.

[00:12:36] Speaker 01:
Or am I missing something?

[00:12:37] Speaker 05:
I think, Your Honor, if you deny enforcement to the board's order, that becomes the law of the case in view of the board.

[00:12:44] Speaker 05:
And so whether you remand with the direction to dismiss or whether you just deny enforcement, we believe the denial of enforcement would end the matter.

[00:12:52] Speaker 06:
Technically, there are two different cases here, aren't there?

[00:12:54] Speaker 06:
I mean, your petition for review and the board's petition for enforcement.

[00:13:00] Speaker 06:
So you want to win on your petition for review and not just on the denial of enforcement, don't you?

[00:13:05] Speaker 05:
That's correct.

[00:13:05] Speaker 05:
We would like the court to grant our petition for review.

[00:13:09] Speaker 06:
That would take care of the question of remand.

[00:13:11] Speaker 06:
We would not have anything to remand there.

[00:13:14] Speaker 06:
The denial of enforcement is a different question.

[00:13:17] Speaker 06:
And with you winning on the first one, and again, I'm not trying to assume something, but if you win, then there's nothing for the board to be remanded about.

[00:13:28] Speaker 06:
We just deny the order.

[00:13:30] Speaker 05:
That's our position.

[00:13:32] Speaker 05:
Yes, Your Honor.

[00:13:32] Speaker 05:
Thank you.

[00:13:33] Speaker 06:
OK.

[00:13:34] Speaker 06:
OK.

[00:13:35] Speaker 01:
Thank you, Council.

[00:13:36] Speaker 01:
Mr. Sollum.

[00:13:38] Speaker 02:
Thank you.

[00:13:38] Speaker 02:
May it please the court.

[00:13:40] Speaker 02:
Aaron Sollum on behalf of Petitioner Keith Purvis.

[00:13:43] Speaker 02:
And if I may, I'd like to reserve at least one minute for rebuttal.

[00:13:48] Speaker 02:
What happened in this case is proof that Judge Millett was right when she noted the board lacks any discernible intervention standards.

[00:13:56] Speaker 02:
The onus of the bargaining order falls on my client and not on the employer.

[00:14:00] Speaker 02:
A bargaining order prevents my client from having his election petition processed, and it will eventually lead to the decertification petition's dismissal.

[00:14:09] Speaker 02:
So when confronted with the similar situation in Novellus, the NLRB's ALJ and ALJ at the NLRB granted a limited intervention to employees to oppose a bargaining order, and on appeal, the board upheld the intervention.

[00:14:22] Speaker 02:
Yet the board cannot adequately explain why intervention was granted in that case and a host of others that we cited in our case, such as Johnson Controls, Avenue Dental, Renaissance Hotel, and intervention was denied in this case, and it can't do so because, as Judge Millett noted, there's no standard.

[00:14:43] Speaker 02:
Now, the board makes three principal arguments on intervention.

[00:14:47] Speaker 02:
First, it claims the board has wide discretion to grant or deny.

[00:14:50] Speaker 02:
Second, it argues Purvis had nothing to add to the hearing.

[00:14:53] Speaker 02:
And third, it argues that any interest Purvis has can be vindicated through the decertification process.

[00:14:59] Speaker 02:
Each of these arguments fail in turn.

[00:15:01] Speaker 02:
First, well, the board unquestionably has discretion.

[00:15:05] Speaker 02:
It can't act arbitrarily.

[00:15:07] Speaker 02:
And the board's intervention decisions are arbitrary because ALJs grant or deny intervention in typically similar cases.

[00:15:15] Speaker 02:
And those interventions are then rubber stamped by the board.

[00:15:18] Speaker 02:
As I said, you see this in novellas, Johnson Controls, New England Confectionary, all the cases we cited in our brief.

[00:15:24] Speaker 02:
And so the standard of granting intervention on a well-you-know-it-when-you-see-it basis is a failure of the board to carry out its own functions.

[00:15:32] Speaker 02:
And as Judge Millett noted, the board has to issue some reliable, consistent standard.

[00:15:39] Speaker 02:
Now, the board claims in its brief that its standard is readily discernible, but this is belied by the fact that the board's newly discovered standard bears little relation to the ALJ's own intervention decision.

[00:15:51] Speaker 02:
The ALJ denied intervention here because he found Purvis lacked an interest in the ULP proceedings because he could go to the decertification proceedings.

[00:15:59] Speaker 02:
But now the board claims that its intervention standard concerns whether the proposed intervener will be able to proffer additional facts.

[00:16:06] Speaker 02:
And so if this standard was actually discernible, it wouldn't have only been applied by the ALJ, it would be applied in every single intervention decision.

[00:16:13] Speaker 02:
And even for the case that the board cites for this proposition, United Dairy Farmers, if you look at footnote three, which talks about intervention, it isn't talking about a factual standard first.

[00:16:23] Speaker 02:
It's talking about an interest standard.

[00:16:25] Speaker 02:
And in that case, they simply found the employers who attempted to intervene in that ULP case didn't have an interest under the statute.

[00:16:32] Speaker 02:
And then it went on to address whether they would have even added additional facts had they had an interest.

[00:16:38] Speaker 02:
And so in reality, what you see is these ad hoc determinations.

[00:16:41] Speaker 02:
That's no standard at all.

[00:16:43] Speaker 02:
And so in any event, I think Purvis did have facts to add here.

[00:16:46] Speaker 02:
And we don't accept that standard, but it ignores that the ALJ credited Rose Berry's testimony because nobody asked Purvis about his interactions with Stephen Day, with the employer's agent.

[00:16:59] Speaker 02:
And Rose Berry's testimony was the linchpin upon which the ALJ held in permissibly aided Purvis' second to certification petition.

[00:17:07] Speaker 02:
And so the board also overlooks that Levitz is unlike other ULP cases.

[00:17:14] Speaker 02:
The Levitz standard necessarily requires

[00:17:18] Speaker 02:
employees to be not only fact witnesses, but the whole test is whether the employees themselves objectively wanted the union gone and Levitz says this is a question of employee section seven rights.

[00:17:30] Speaker 02:
So it makes conceptual sense to say if Levitz is about employee section seven rights, those employees should have the ability to retain their own counsel and participate in the hearing to the extent Levitz is necessary.

[00:17:42] Speaker 02:
Now I'm running short on time.

[00:17:44] Speaker 02:
And I just want to say that service has an interest in opposing a bargaining order precisely because of this Kafka as process where the board says you have a right to an election, but that election is dependent upon what happens in this case.

[00:17:58] Speaker 02:
So the board can't have it both ways.

[00:18:00] Speaker 02:
They can't say we want a bargaining order that prevents an election.

[00:18:03] Speaker 02:
an election that's been prevented now for three years and at the same time they say well you can go get an election but you can't and so ultimately what the board even says in its remedial order when they refuse to apply johnson controls they say the party should have been bargaining and they could have come to an agreement

[00:18:19] Speaker 02:
But that agreement would block any election for up to three years.

[00:18:23] Speaker 02:
So in reality, what you have is three years without an election.

[00:18:27] Speaker 02:
Then you have additional time for bargaining under a bargaining order.

[00:18:30] Speaker 02:
And then three years after that, if they come to an agreement before the time period runs out on the bargaining order, then we're blocked for an additional three years, up to seven years.

[00:18:40] Speaker 02:
So to say that we don't have an interest in this case, I think is just wrong.

[00:18:43] Speaker 02:
Now, I'm out of time.

[00:18:45] Speaker 02:
Does the court have any questions?

[00:18:48] Speaker 01:
I don't believe so.

[00:18:50] Speaker 01:
Doesn't look like it.

[00:18:51] Speaker 01:
So thank you, Mr. Solon.

[00:18:52] Speaker 01:
Thank you.

[00:18:53] Speaker 01:
We'll hear from the board council now, Ms.

[00:18:55] Speaker 01:
Sheehy.

[00:18:57] Speaker 04:
Good morning, Your Honors.

[00:18:58] Speaker 04:
Barbara Sheehy for the National Labor Relations Board.

[00:19:00] Speaker 04:
Is my volume okay?

[00:19:01] Speaker 04:
I'm also new to this.

[00:19:02] Speaker 04:
Everybody hear me okay?

[00:19:04] Speaker 04:
If you don't, obviously just let me know and I'll see if I can move closer to the microphone.

[00:19:08] Speaker 04:
So I'm going to start with

[00:19:10] Speaker 04:
the remedial order in this case, the affirmative bargaining order, because that seemed to be gaining a little attention in opposing counsel's arguments.

[00:19:17] Speaker 04:
So I'd like to start there.

[00:19:18] Speaker 04:
And we start from the premise that this is not SCOMAS.

[00:19:22] Speaker 01:
SCOMAS was- I'm sorry, just at least for my purposes, and if my colleagues would like to hear argument on that, I don't want to deter you, but I'd like to hear about the retroactivity issue about Johnson Controls rather than

[00:19:35] Speaker 01:
presuming that we're at the affirmative bargaining order.

[00:19:38] Speaker 01:
Okay.

[00:19:40] Speaker 04:
I'm happy to start with retroactivity.

[00:19:43] Speaker 01:
My main question is just to channel the inquiry a little bit is, let's just assume that the board does get to define, at least has discretion to determine when decisions are retroactive and when they're not.

[00:19:56] Speaker 01:
And let's just assume further that the board could in theory decide that Johnson controls

[00:20:01] Speaker 01:
even though it framed it as retroactive to this case in all pending cases, it could decide in some other pending case that even though Johnson Controls applied retroactively in Johnson Controls itself and framed it as applying to pending cases, there could be some pending cases as to which Johnson Controls wouldn't be applied retroactively and the board has discretion to do that.

[00:20:21] Speaker 04:
Sorry, can I just ask, when you say pending cases, do you mean pending at the administrative level, just to make sure I understand the question, or is it pending in any phase?

[00:20:28] Speaker 01:
Well, so that's a question.

[00:20:30] Speaker 01:
I mean, to me, when we talk about pending cases, it just means all pending cases.

[00:20:33] Speaker 01:
But I'll even assume further that one could draw a distinction between cases that are pending before the agency and that are pending on judicial review.

[00:20:41] Speaker 01:
I'll go there, too.

[00:20:43] Speaker 01:
But still, there has to be a reason to treat a case differently.

[00:20:47] Speaker 01:
than another case in which retroactive treatment was granted.

[00:20:52] Speaker 01:
And as I read the board's order in this case, the reason basically boils down to there's some language about institutional interests.

[00:21:00] Speaker 01:
I think that just

[00:21:01] Speaker 01:
that just points the reader towards what comes next because institutional interest isn't self-defining.

[00:21:07] Speaker 04:
I agree that there's overlap, absolutely.

[00:21:09] Speaker 01:
And then what comes next is basically it's a time question about it's been some time and the parties should have been bargaining.

[00:21:19] Speaker 01:
But all that happened was the employer took and filed a petition for review.

[00:21:25] Speaker 01:
And at that point, I don't

[00:21:28] Speaker 01:
I don't know what an employer is supposed to do, particularly when they actually have, but Johnson Controls itself, the board says, you know, there were some serious questions about affirmative bargaining order.

[00:21:38] Speaker 01:
That's not to say that you necessarily win or lose on that, but it's just to say that there's a serious question on it.

[00:21:43] Speaker 01:
Then on all the employer has done is filed a petition for review.

[00:21:47] Speaker 01:
And it's just hard for me to understand why the mere act of filing a petition for review puts this case on a different footing than Johnson Controls itself.

[00:21:56] Speaker 01:
There may be other reasons why it's on a different footing, but there's nothing in the board's order that spells out anything further than that.

[00:22:03] Speaker 04:
Respectfully, I think the board does, and it could be that it's in the footnote.

[00:22:07] Speaker 04:
So there's the footnote also in the denial of the motion for reconsideration.

[00:22:10] Speaker 04:
So there's the supplemental order.

[00:22:12] Speaker 04:
The December order 2019 and there's also the denial of the motion for reconsideration and the board does more than just say they should have been bargaining for six months.

[00:22:21] Speaker 04:
In fact, the board points out that it deliberately issued.

[00:22:27] Speaker 04:
Leggett and Platt, knowing that Johnson Controls was pending.

[00:22:31] Speaker 04:
Johnson Controls didn't issue for six months afterward.

[00:22:34] Speaker 03:
So this is a strange retroactivity case in the sense it's not that the board- When they say there was a deliberate decision, the decision is just based on the fact that there were not three votes to overturn Levitz in this case.

[00:22:51] Speaker 03:
Is that the institutional reason?

[00:22:56] Speaker 04:
The board cites to the fact, yes, that there was not, and I believe that's in the original, not the denial of motion for reconsideration, that had to do with the issuance of, yes, Leggett and Platt, not an institutional reason for it to deny retroactivity.

[00:23:10] Speaker 04:
There's a distinction there, I think, on the institutional reasons.

[00:23:13] Speaker 03:
Is that part of the reason to deny retroactivity for Leggett and Platt, though?

[00:23:19] Speaker 03:
I'm sorry, is what is the fact that they did not have that there were not three board members for that position.

[00:23:27] Speaker 04:
And that's not that's not identified by the board as one of the reasons that it's not applying retroactivity when the board refers to the lack of three board members or a full board at the time.

[00:23:39] Speaker 04:
Three members to overturn it's referring to the deliberate decision to issue.

[00:23:44] Speaker 04:
leg it and plaque the way that leg it and plaque it.

[00:23:47] Speaker 03:
But the deliberate reason is about the recusal.

[00:23:50] Speaker 03:
Like there's no other deliberate reason from what I can see from the reporter.

[00:23:55] Speaker 03:
There's nothing deliberate other than the recusal question.

[00:23:58] Speaker 04:
I don't know.

[00:24:00] Speaker 04:
There's nothing else in the decision, but I don't know internally.

[00:24:04] Speaker 01:
Well, let's put it this way.

[00:24:05] Speaker 01:
If we take the recusal, it sounds to me like you're not relying on the recusal.

[00:24:08] Speaker 01:
So if we take the recusal out of play,

[00:24:12] Speaker 01:
than what was meant by deliberate determination.

[00:24:16] Speaker 04:
Is that the board was aware, deliberate in the sense that it was aware that Johnson controls was in the pipeline.

[00:24:22] Speaker 04:
The board would certainly know that a similar pending case, in fact, it was in all likelihood on briefing at the same time, or in drafting.

[00:24:29] Speaker 01:
Sure, but I don't, there has to be some reason underlying.

[00:24:33] Speaker 01:
I mean, the board can't, they're both pending before the board.

[00:24:37] Speaker 01:
They have case A and case B. The fact that the board says, you know what,

[00:24:41] Speaker 01:
Case A came up first, but we decided that we were going to issue the decision in Case B second.

[00:24:47] Speaker 04:
Therefore, we're not going to apply A retroactively to B. Right, and that's because I think Your Honor's right, but they issued the decision, the first one, the legate and plaque case.

[00:24:57] Speaker 04:
They issue that because of the recusal.

[00:24:59] Speaker 04:
A member of Manuel could not participate.

[00:25:02] Speaker 04:
in the first case.

[00:25:04] Speaker 03:
Right, but so the recusal, however, is not a reason.

[00:25:07] Speaker 03:
So once Johnson Controls is decided and Johnson Controls says that it will have retroactive application, the earlier recusal cannot, I mean, I don't see how that could be a reason for the agency not to apply retroactivity to Leggett and Platt.

[00:25:25] Speaker 04:
Well, there were other reasons, though, cited by the board.

[00:25:29] Speaker 04:
It wasn't just that.

[00:25:30] Speaker 04:
They did also acknowledge that the bargaining order had been in effect for six months.

[00:25:35] Speaker 03:
But that's going to be true for any party that has a bargaining order and chooses to appeal.

[00:25:39] Speaker 03:
That is not a reason particular or deliberately considered about Leggett and Platt.

[00:25:46] Speaker 04:
I think what's significant in that sense, though, is that the board also recognizes that to allow a decision that it is issued, knowingly issued,

[00:25:55] Speaker 04:
knowing that there's the possibility, everybody briefed in this case and they briefed in Johnson Controls, reversing the last in time.

[00:26:04] Speaker 03:
It's really interesting that you keep saying knowing because you're not distinguishing the two cases on their facts or on how Johnson Controls would apply.

[00:26:12] Speaker 03:
The only thing that is knowing in the sense in which you say, unless you can point to something else, is the recusal.

[00:26:18] Speaker 03:
Like you haven't pointed to any other distinction about why Leggett and Platt was deliberately or knowingly

[00:26:26] Speaker 03:
decided in the way that it was.

[00:26:28] Speaker 04:
And I think what's unusual in this case on the retroactivity doctrine, right, is that the board had already decided the case.

[00:26:37] Speaker 04:
So even the courts recognize or even the courts recognize that that's an unusual.

[00:26:41] Speaker 04:
In fact, as far as I know, there is a precedent for a retroactivity doctrine where an administrative decision has already issued with with the board issued a decision in the case as opposed to cases that hadn't been issued before.

[00:26:54] Speaker 04:
So I do think the board is do some deference under the statute to determine listen, we don't want to incentivize delay to the extent that we issue in order, and there could be another case that everybody's familiar with because sometimes the board puts out a call for briefing.

[00:27:09] Speaker 04:
that once they put out that call, if I'm on the receipt, I'm on the losing end of a decision, they don't want to incentivize delay, hoping that the case will be overturned.

[00:27:19] Speaker 06:
So I do think the board- I don't understand that point about not incentivizing delay.

[00:27:24] Speaker 06:
The only delay you're talking about here is the time it takes to pursue their legal rights.

[00:27:29] Speaker 06:
What in the world do you mean by incentivizing delay?

[00:27:33] Speaker 06:
We're going to decide against you because you're out there appealing from what we decided against you.

[00:27:38] Speaker 04:
Incentivizing delay in the sense that if they're absent Johnson controls, nobody knows whether, so Johnson controls pending and before the board, nobody knows whether the employer would have actually gone to the bargaining table.

[00:27:55] Speaker 04:
So incentivizing in the sense that if I otherwise would voluntarily comply, because everybody knows the board's orders are not self-enforcing,

[00:28:02] Speaker 04:
If I was otherwise, as an employer, willing to comply, but I now know that there is a pending case before the board that will turn the law around, then I may absolutely file a petition for review.

[00:28:15] Speaker 04:
And there are no timelines either in the statute.

[00:28:17] Speaker 01:
Sure, but that's just a, I got to say, I don't begin to understand how that weighs in the board's favor here.

[00:28:25] Speaker 01:
Did Johnson Controls come up before the board first?

[00:28:28] Speaker 01:
Or did Leggett come up before the board first?

[00:28:31] Speaker 04:
believe, and I'll correct myself later if this is wrong, I believe Johnson Controls was in the pipeline first, I think.

[00:28:39] Speaker 01:
That's my guess.

[00:28:40] Speaker 01:
So Johnson Control comes up, that's what that was my understanding too.

[00:28:43] Speaker 01:
So Johnson Control comes up first, and the way you're describing it, the board can make an intentional decision to issue Leggett first, even though it came up second, and the byproduct of the intentional decision

[00:28:55] Speaker 01:
to go out of order.

[00:28:56] Speaker 01:
If you took them in order, if you did FIFO, then you if you did first in first out, then you would issue Johnson control first.

[00:29:02] Speaker 01:
But then the board says, you know what, I want leg it to actually have a bargaining order.

[00:29:07] Speaker 01:
So I'm going to go ahead and take them out of turn and issue Leggett first, and then I'm going to issue Johnson Controls that takes the substantive foundation out from under the bargaining order in Leggett.

[00:29:16] Speaker 01:
But because I decided deliberately that I was going to issue Leggett first, now I can just say that I'm going to set the law right in Johnson Control, the law right the way the board sees it.

[00:29:25] Speaker 01:
I'm not suggesting that I think the law is necessarily right or wrong.

[00:29:28] Speaker 01:
That's the way the board has seen it.

[00:29:29] Speaker 01:
that sets the law in a particular direction in Johnson Controls.

[00:29:32] Speaker 01:
And then I'm just gonna decide that because I deliberately did Leggett first, even though it came up second, then Johnson Controls doesn't apply to Leggett.

[00:29:39] Speaker 01:
That doesn't paint a particularly sympathetic portrayal in my mind on the board.

[00:29:44] Speaker 01:
I'm not quite sure why they have the discretion to do that.

[00:29:46] Speaker 01:
I think as Judge Rao was saying, there has to be some reason for treating the two cases differently other than the board deliberately decided to issue one before the other, because that's not a reason.

[00:29:57] Speaker 01:
And it's not the recusal.

[00:29:58] Speaker 01:
I can understand why you're not relying on the recusal, because that doesn't seem like it would be a reason either.

[00:30:02] Speaker 01:
So it seems to me you're right not to rely on that either.

[00:30:05] Speaker 01:
But there has to be something that says, even though I applied case B retroactively, I'm not going to apply pending case A retroactively, other than I deliberately decided that I wanted to issue A first, because that doesn't seem like a reason to treat them differently.

[00:30:21] Speaker 04:
Right.

[00:30:21] Speaker 04:
And I don't know that that, again, I'm not involved in the internal workings on the board side.

[00:30:26] Speaker 04:
I'm not, I think that's unfair to say that the board was sort of involved in those mechanics.

[00:30:31] Speaker 04:
Outwardly, it may.

[00:30:33] Speaker 01:
I'm not suggesting I'm taking you at face value on your argument because I'm not seeing what the reason is for treating the two cases differently that

[00:30:43] Speaker 01:
is manifested in the board's order, other than a statement that there's institutional reasons, which, as we all agree, that just refers to what comes next.

[00:30:51] Speaker 01:
A statement about something deliberate, which also I think doesn't – it's not self-defining.

[00:30:55] Speaker 01:
I don't understand what's being deliberate other than what you're saying, which is they deliberately decided to issue one decision before the other.

[00:31:02] Speaker 01:
That's fine.

[00:31:03] Speaker 01:
Of course you can make a deliberate decision to issue one decision before the other.

[00:31:07] Speaker 01:
But if they're both pending, then there has to be a reason for treating the two cases differently.

[00:31:12] Speaker 01:
I don't understand what that reason is just by use of the word deliberate.

[00:31:17] Speaker 01:
Then that takes you to the third thing, which is that this was pending for a while and they could have been bargaining.

[00:31:23] Speaker 01:
As to that, all the employer did – and I think that's what you're left with.

[00:31:27] Speaker 01:
And as to that, all the employer did was take an appeal.

[00:31:31] Speaker 01:
I'm sorry they filed a petition for review in a context in which I don't know what the I could even conceive of a situation there may be some situation out there where the employer engaged in some kind of conduct that was dilatory, including in the context of taking a petition for review, I'm not sure what that would be, but you know the board would be free to say that in the particular circumstances there's some dilatory conduct here that justifies differential treatment.

[00:31:55] Speaker 01:
But here the only conduct is filing a petition for review, which was entirely within its rights, especially because in Johnson Controls itself, the board says that there's grounds for calling into question whether an affirmative bargaining order is warranted given the DC Circus decision in SCOMAS.

[00:32:11] Speaker 01:
What's the board left with on treating the cases differently?

[00:32:14] Speaker 04:
I'm not, I'm not sure how to answer the question because you've walked through all the reasons that the board that the board is given but but again, I would remind the court, I think that the board is entitled to some deference.

[00:32:25] Speaker 04:
And it's not just that the reasons that are articulated were just, you know, we think it was delivered or we think this they've tried to tie the board tries to tie it to its statutory

[00:32:34] Speaker 04:
obligations.

[00:32:35] Speaker 04:
And so they tried to explain the board has tried to explain why it is that in this case, they decided on the particular facts of this case that I'm trying to be.

[00:32:44] Speaker 01:
I mean, I'm trying to be as deferential as I possibly can be to the board.

[00:32:49] Speaker 01:
Honestly, I am.

[00:32:50] Speaker 01:
And all I'm hearing is

[00:32:52] Speaker 01:
conclusory, you're left with the board order that you're trying to defend.

[00:32:56] Speaker 01:
So I'm not, I'm not blaming you, but I'm just saying all we're left with is the reasons that were given in the board's order.

[00:33:02] Speaker 01:
And they don't feel like they have anything underneath them because institutional, we all agree doesn't say anything deliberate.

[00:33:09] Speaker 01:
I don't understand what that says because it only means you deliberately decided one before the other.

[00:33:13] Speaker 01:
There's nothing underneath that.

[00:33:14] Speaker 01:
Then you're left with the time period, which that in theory could be something.

[00:33:18] Speaker 01:
But here, the time period isn't anything other than taking the petition for review.

[00:33:23] Speaker 01:
As to that, am I right or wrong about that?

[00:33:25] Speaker 01:
Is there something else that I'm missing about what is involved in the time period?

[00:33:29] Speaker 04:
So the time period, I think the board looked at it more holistically in the sense that, so certainly as the facts played out here, yes, this employer, and I'm going to go back to something I think I've met with resistance before, but I'll try again.

[00:33:41] Speaker 04:
The employer here certainly took

[00:33:42] Speaker 04:
the appeal but I think the board is more focused on in the abstract it expects voluntary compliance with its orders and it doesn't want the an employer or union for that matter to game the system and not comply in the hopes that there will be it's not supposed to legally expect compliance with this order it's supposed to legally expect compliance or petition uh you're

[00:34:09] Speaker 06:
You're not gaining anything by expressing that expectation on the board's part, I don't think.

[00:34:14] Speaker 04:
I don't think it's unfair to say that the board has a reasonable expectation of voluntary compliance.

[00:34:19] Speaker 06:
And in fact, in the right to petition for review exists, you think you should be able to expect where they're going to comply rather than petition.

[00:34:28] Speaker 04:
I don't think that a reasonable expectation necessarily negates an employer's right to file a petition for you.

[00:34:34] Speaker 04:
I can have the board can have that reasonable expectation while fully recognizing, as it must,

[00:34:39] Speaker 04:
an employer's ability to take the appeal.

[00:34:41] Speaker 04:
But in large measure, as a percentage, not a lot of our cases actually do come to the court.

[00:34:47] Speaker 01:
I feel like maybe I'm here often enough, but as it relates to all the decisions and orders that issue, there is a- Okay, but even on that, even if we assume all of that, and again, I am trying to be as deferential to the board as possible given our court's decisions on that issue, Johnson Control says, this is the board, and Johnson Control says,

[00:35:08] Speaker 01:
In light of the DC Circuit's opinion in SCOMAS, the enforceability of an affirmative bargaining order issued under pre-existing law would be in serious doubt.

[00:35:18] Speaker 04:
So two responses to that.

[00:35:20] Speaker 04:
The first is, I'm not sure now that Wyman and Gordon has issued.

[00:35:26] Speaker 04:
I'm not sure that the board was right.

[00:35:28] Speaker 04:
For Wyman and Gordon, we sent the 28-J letter in on that, where an affirmative bargaining order did actually survive judicial review in that case.

[00:35:36] Speaker 04:
So that was the first point I was making.

[00:35:39] Speaker 04:
The second thing I wanted to say was that's a comment then on the affirmative bargaining order.

[00:35:43] Speaker 04:
That's a comment on the remedial order, not on the violation.

[00:35:48] Speaker 04:
So the retroactivity applies to the first in line and obviously affected the order itself, the remedial order, because if you undo the ability of the union as Gabor did in Johnson Controls to rehabilitate support.

[00:36:03] Speaker 01:
But in terms of filing a petition for review,

[00:36:06] Speaker 01:
didn't the employer file a petition for review in which one of the issues raised was the enforceability of the affirmative bargaining order?

[00:36:16] Speaker 04:
Certainly based on scomas, absolutely based on scomas.

[00:36:18] Speaker 01:
And that's something the board itself says would be in serious doubt.

[00:36:23] Speaker 01:
Now that's not to say, of course, that doesn't mean insuperable doubt.

[00:36:26] Speaker 01:
I mean, it's possible that an employer can win.

[00:36:29] Speaker 01:
And I'm not necessarily saying whether the employer wins or doesn't on this case, but in terms of,

[00:36:33] Speaker 01:
understanding the board's understanding of why an employer would file a petition for review.

[00:36:37] Speaker 01:
In this case, the board itself said That the issues in serious doubt in this context after scum is Yeah, I can't deny what the board says in Johnson control.

[00:36:49] Speaker 04:
Right.

[00:36:50] Speaker 01:
So then in terms of whether the board can expect.

[00:36:53] Speaker 01:
I mean, you're you've made an argument that the board can expect that its orders are going to be complied with and I'm just

[00:36:59] Speaker 01:
What I'm suggesting is the board itself has understands that on this exact issue, the affirmative bargaining order in this case, even if a board can generally be seen to expect that its orders are gonna be complied with, and even putting to one side that there's a statutory entitlement to file a petition for review, on this petition for review, it's an issue as to which the board itself says they're serious doubt.

[00:37:22] Speaker 04:
And again, I think I would fall back on the notion that in deciding and looking at its statutory rights and its institutional reasons, the board is looking more in the abstract.

[00:37:31] Speaker 04:
It doesn't want to encourage in any circumstance, whether in this particular case that didn't factor in as heavily as it would in a different case, the board is saying that retroactivity here undermines its reasonable expectation of compliance.

[00:37:52] Speaker 04:
I would say it's more than the answer.

[00:37:53] Speaker 01:
I see.

[00:37:55] Speaker 01:
Let me ask my colleagues if they have any further questions.

[00:37:57] Speaker 03:
I did have just one other question.

[00:38:00] Speaker 03:
I mean, the board obviously has some discretion with respect to whether it applies its decisions retroactively.

[00:38:08] Speaker 03:
But in a context like this where the board and Johnson Control specifically decides that its decision will apply retroactively, what is the scope of the board's discretion to make a different decision?

[00:38:20] Speaker 04:
Right, that's a wonderful question.

[00:38:22] Speaker 04:
And I don't know, maybe we looked at what the law is and the retroactivity doctrine speaks as Judge Rao just said, as you just said, it speaks first, right, to the board's discretion to decide the matter in the first instance.

[00:38:38] Speaker 04:
But then beyond that, even this court has recognized, and I think it's the commercial union case, I believe, United Commercial Workers,

[00:38:46] Speaker 04:
that the standard is sort of all over the map, even in this circuit, as to how does this court look at that determination.

[00:38:54] Speaker 04:
But even in those cases where this court has recognized that there's some level of discretion, because one of the components of the Manifest Injustice Test looks at the statutory considerations.

[00:39:05] Speaker 04:
So in that regard, as we wrote in our brief, we maintain that the board is entitled to some discretion.

[00:39:10] Speaker 04:
And on top of that, I would add

[00:39:12] Speaker 04:
And I tried to say this earlier, I don't know if I made the point clear though, but it's an unusual case in that traditionally the retroactivity cases that come up on appeal where the court, any court, is reviewing an agency's retroactivity decision.

[00:39:28] Speaker 04:
It's as if it's the Johnson Controls decision.

[00:39:31] Speaker 04:
So meaning retroactivity is normally challenged in the very decision where the board has said or the other agency

[00:39:39] Speaker 04:
has said this is retroactive in all this case and all pending cases.

[00:39:43] Speaker 04:
And I think it's a different proposition to say that this is a decision that already issued six months before the retroactivity decision came out.

[00:39:54] Speaker 04:
So I think in that regard, the board here, I think that's why you saw them speaking to institutional reasons and relying on that context to

[00:40:05] Speaker 04:
to deny retroactivity in this case.

[00:40:07] Speaker 04:
And I think that counsels in further of a higher level of deference than in a traditional retroactivity case, which would be, like I said, if Johnson controls were to come up before the court and the issue of retroactivity in the actual dispute of the case where that decision issued, I think it would be a different proposition.

[00:40:27] Speaker 01:
Thank you, Ms.

[00:40:27] Speaker 01:
Sheehy.

[00:40:28] Speaker 01:
I don't believe we have for the questions for you.

[00:40:29] Speaker 04:
Thank you.

[00:40:30] Speaker 01:
Thank you.

[00:40:32] Speaker 01:
Mr. Harper, we'll give you your two minutes that you asked for on rebuttal.

[00:40:35] Speaker 05:
Thank you, Your Honors.

[00:40:36] Speaker 05:
Very briefly, Ms.

[00:40:38] Speaker 05:
Sheehy mentioned this court's recent Wyman-Gordon decision, but that decision is very distinguishable for the reasons that Leggett and Platt stated in the 28-J letter.

[00:40:46] Speaker 05:
Can you speak up just a little bit?

[00:40:47] Speaker 05:
Yep, sorry.

[00:40:49] Speaker 05:
Ms.

[00:40:49] Speaker 05:
Sheehy mentioned the Wyman-Gordon decision that this court recently issued, but that issue of that decision is distinguishable for the reasons that Leggett and Platt stated in its 28-J letter, among other things.

[00:41:00] Speaker 05:
The petition in that case was defective.

[00:41:02] Speaker 05:
The petition in this case was not defective.

[00:41:05] Speaker 05:
Secondly, Ms.

[00:41:06] Speaker 05:
Sheehy mentioned that this case was an unusual case because it had already been decided when the retroactivity matter was decided.

[00:41:15] Speaker 05:
A case that we cited in our motion for reconsideration to the board on this very issue was the board's decision in Williams Energy Co.

[00:41:23] Speaker 05:
340 NLRB 764, where the Williams case was pending before the Fifth Circuit.

[00:41:29] Speaker 05:
The board was in the process of deciding a case that was going to reverse precedent underlying the Williams case.

[00:41:35] Speaker 05:
The board asked for remand of the Williams case, decided the new case, reversing precedent, and then applied the new precedent in the Williams case, even though the board had decided the Williams case previously.

[00:41:47] Speaker 05:
So that case was cited to the NLRB in our motion for reconsideration, and we would submit it to you for consideration with respect to the board's point.

[00:41:55] Speaker 05:
With that, unless the court has any other questions for me,

[00:41:58] Speaker 05:
I will see the remainder of my time for grant legates petition and deny the boards.

[00:42:06] Speaker 01:
Thank you, Mr. Harper.

[00:42:07] Speaker 01:
Mr. song you did have one minute I don't think your issue came up in the course of arguments but you're welcome to take your one minute if you'd like.

[00:42:15] Speaker 02:
Just to address two quick topics that I think came up in the course of all of the discussions today.

[00:42:21] Speaker 02:
First, to piggyback on what Mr. Harper said, Wyman-Gordon is extremely distinguishable for the reasons we both stated in our responses.

[00:42:29] Speaker 02:
But also it's interesting that Judge Henderson was on the panel and also wrote SCOMAs.

[00:42:34] Speaker 02:
I think the court would be surprised to learn that it overruled SCOMAs sub silencio because Wyman is just completely distinguishable.

[00:42:44] Speaker 02:
Second of all, I wanted to discuss the issue of remand.

[00:42:48] Speaker 02:
The court's mostly focused on the Johnson Controls issue and we're agnostic about that because whether or not there's an election because there can't be a bargaining order or there's an election because the union moves for it under Johnson Controls possibly, it doesn't matter either way, potato, potato.

[00:43:04] Speaker 02:
But the question is, is what to do with this case?

[00:43:06] Speaker 02:
And in our opinion, we think a remand is the best issue to deal with this.

[00:43:10] Speaker 02:
if it is not dismissed because the board has to fashion some other remedy.

[00:43:14] Speaker 02:
And as this court noted in SCOMAS, an election is the appropriate remedy under SCOMAS.

[00:43:18] Speaker 02:
And this case is on all four with SCOMAS.

[00:43:20] Speaker 02:
So thank you.

[00:43:22] Speaker 01:
Thank you, counsel.

[00:43:23] Speaker 01:
Thank you to all counsel.

[00:43:24] Speaker 01:
We'll take this case under submission.