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Case number 20-1008 et al, National Labor Relations Board petitioner versus NP Palace LLC, doing business as Palace Station Hotel and Casino.

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Mr. Rosenfeld for petitioner IUOE, Ms.

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Beard for the respondent.

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Mr. Rosenfeld is now unmuted.

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Good morning.

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Good morning.

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David Rosenfeld for the petitioner Local 501 of the International Union of Operating Engineers.

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Local 501.

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Mr. Rosenfeld, can you get a little closer to your mic?

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Is this better?

[00:00:41] Speaker 05:
Yeah, a little closer.

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All right, this better?

[00:00:45] Speaker 05:
That's much better.

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Go ahead.

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All right.

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Thank you.

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Yeah, thanks.

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Local 501 organized five groups of slot techs in five casinos owned by the same employer.

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In each case, the employer refused to bargain.

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And in each case, either the Ninth Circuit affirmed the board's decision that this was an appropriate unit and that the slot text were not guarded.

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This court then entered consent orders in the other three in May of this year.

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This case involves one of those.

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Ms.

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Beard and I were on the same side in the case involving Palace seeking to enforce the board's judgment.

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We're now on opposite sides on this question.

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The first issue before the court that I want to address is this question having to deal with whether this court's decision in tariffs and other cases holding that where an employer does not raise the issue of confidentiality and offered to bargain about it when the union makes a request for information that is relevant, does it then waive its right to bargain about that issue after certification is issued?

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What I want to emphasize in terms of this oral argument is that we have a situation where the board has offered a number of rationales for changing its position with respect to this doctrine.

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None of these rationales meet any test of reason decision making.

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Let's address the first issue that the board uses to justify this change in position.

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They say, well, we have to protect those few employers who happen to prevail in the test of certification from having to waive their right to do so.

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As we pointed out in brief, there really is no right in the statute to do something illegal.

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The statute imposes limited remedies on the employer who refuses to bargain, but nonetheless makes it an unfair labor practice.

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Just so that I'm clear, counsel, what are the remedies if an employer refuses to bargain on the basis that it believes that the union was not properly certified, but the board finds that to be that defense to be to the unfair labor practice to be without merit?

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What are the remedies available to the board at that point?

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The remedy to the board is an order from a court ordering the employer to bargain

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with that unit.

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But attached to that obligation, that remedy, are many other aspects.

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For example, if an employer makes unilateral changes to working conditions during that period when challenging the certification, the employer can be ordered to reinstate the former conditions, make employees whole, and bargain over those matters retroactively during the year or two years it delays the certification.

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If an employer denies Weingarten rights to the employees, the employees

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if he can given those rights.

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So there are many other remedies attached to it.

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And the statute also gives the union some leverage here because theoretically the union can engage in an unfair labor practice strike.

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And there's actually a strange position in the law that says, if the employer is refusing to bargain after a certification, the secondary boycott laws don't apply.

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So the statute has built into it a mechanism to deal with the remedy issue, both in terms of the court order, as well as in terms of what the union can do here.

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Well, thank you.

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I mean, I guess then that raises a question for me is if all of those remedies are available, then why is it necessary that it also be available, so to speak, that the employer waives any right to challenge or on

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confidentiality grounds, any information requests?

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Because that's what's built into the statute, because the statute says the employer has a choice.

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You can recognize the union bargain, bargain all mandatory subjects, or you can choose the other route.

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The other route has certain remedies and penalties applicable to it, but there's no in-between.

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The statute doesn't envision part bargaining, part not bargaining, part replying to information requests, not replying to others,

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Because it didn't, the board didn't, the board seems to believe that the employers who want to both challenge certification and raise a confidentiality question can't really do both.

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You seem to think that it's not accurate, right?

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The board is corrected under what's been the law in every circuit that's had these issues before it.

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And the board up to this point is that the employer is faced between a rock and a hard place, but that's what the statute envisions.

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That is, if they have a confidentiality concern or what's most unusual about this case is the board says, well, it doesn't apply to this confidentiality concerns.

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It applies, for example, if you need clarification of the union's request, if you think it's too burdensome, if you think it's not all relevant, you want to talk about the format.

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Before you go, why is that Catch-22 implicit in the statute?

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It's implicit, if not explicit, in the statute because the statute gives the employer one remedy, which is it allows the court to stay the board order.

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The board order is not stayed.

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and explicit in the statute is this choice, you either bargain with the union or you don't bargain with the union.

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If you don't bargain with the union, as Judge Randolph, you said in that decision issued on Friday in the Davidson case, you choose the option of committing an unfair labor practice.

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So the statute established by Congress, the procedure established by Congress was super binary choice.

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you either bargain or you don't bargain, nothing in between because that makes no practical sense.

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What if the, what if the employer says you've asked for 10 things?

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Um, we think that nine of them are fine, but the 10th thing we think is, um, is confidential and we'll give it to you so long as you sign a protective order or confidentiality agreement.

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Um,

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We're not bargaining.

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This is take it or leave it.

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This is what we'll do, but we'll give you all 10 things as long as you sign this agreement.

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And the union says, no, you have to bargain.

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What happens in that case?

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Or what would have happened before this decision in that case?

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The union would have accepted the employer's offer, but that would have constituted under current board law and law

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of all the other circuits that dealt with an offer to bargain and would have rave waived its right to test certification.

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It's sort of a bright line.

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Exactly.

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That's the dilemma.

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The board is trying to avoid here, isn't it.

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Yes, but that's a dilemma created by the scheme.

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For example, the employers face with the dilemma in all sorts of circumstances.

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It can't make unilateral changes, your honor, without bargaining with the union first.

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So the dilemma is The procedure the board adopted here, avoid that dilemma.

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It avoids that dilemma on confidentiality, but it also, the way the board adopted it, avoids it on any issue regarding information requests.

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For example, they say this applies to a union request that might be burdensome or irrelevant or not clear.

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For example, the second request having to do with customer complaints.

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If they were unclear as to how far we want or what do we want, what do we really want, they could have certainly clarified that and that's what bargaining is about, but they chose not to do it.

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So it is only a dilemma, but it's a dilemma that applies in every other circumstance where the employer is either testing certification or withdrawn recognition or refuses to bargain with the union, the statute, and the process creates that dilemma.

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Either you recognize the obligation to bargain or you don't.

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And if you don't, there are consequences to it.

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So, so help me understand what would have happened before this case if the employer had said,

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I'm not giving you anything because if I do, it'll be construed as bargaining.

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And I want to challenge the certification.

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And so the union has made several information requests.

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The

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The union would request an unfair labor practice charge for refusing to provide the information and for refusing to bargain.

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When would the union be able to actually get any documents under the prior regime?

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It wouldn't be until after the certification issue had been resolved by the board, right?

[00:10:09] Speaker 04:
Correct, but it would have gotten all those documents information retroactive to when it made a request as opposed to only potentially perspective after it goes through this lengthy accommodative bargaining process.

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So the point that we're trying to make in this case is that that interferes with the bargaining process.

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It means the union, you wait two years, then you sit down, and to send the information, you don't get it.

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You may have to wait an additional period of time.

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You may not even get it, depending on bargaining.

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Or under the old regime, you would have sat down at the table and said, well, employer, you waived it.

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But I don't know of an employer, a union that would not have said to the employer, you got confidentiality concerns.

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We have a bargaining relationship.

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let's deal with it.

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And that's particularly appropriate here because you're dealing with slot tax.

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And these policies we are concerned about are the ones they know about.

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They're the ones with policies that they have to enforce and live by.

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So this isn't one of these cases like in Detroit Edison.

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We've got the confidentiality interests of the employees who took the test.

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Nor is it a case like in Detroit Edison where you had a psychological test where nobody was seeing the test themselves.

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It was kept secret.

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And here, the employer offered no evidence as to exactly how confidential these policies are.

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Let me try to understand the impact of the board's decision here.

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You're saying that now, instead of ordering the production of the documents, the board is just ordering the parties to bargain over the production of the documents and

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What happens if the union is dissatisfied with the bargaining over the scope of what the employer wants to produce?

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What happens then?

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Well, theoretically, if you go back to another unfair labor practice proceeding or potentially a compliance proceeding, where the board does what Detroit Edison and this court said an OCW have to do, the board then has to balance the interests of the parties and decide whether the information that you sought really was that confidential or whether there's some other mechanism to provide it.

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That is a long-term delay.

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What we're seeking to avoid in this case, allowing employers to then delay the production of any information

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bargaining on an accommodative basis while we're trying to get a first contract, which is always very difficult.

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What in the statute, what provision of the NLRA has the board violated here?

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It's violated 29 U.S.C.

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Section 160 G, which says the board decision is final, subject only to a state of the court.

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So the statute envisions in 29 USC section 160 f the right of either party to petition for review and this this kind of this kind of procedure violates that provision, other than the statutes been interpreted.

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by this court and the Supreme Court to say you have a binary choice.

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You either bargain or you don't bargain.

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And if you do bargain on any subject, you waive the right to challenge the certification.

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And you've waived your right in a successorship case or withdrawal of recognition case or any other bargaining case to challenge.

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But the dissent, as I read the dissent, the dissenting board member would have solved that problem by allowing, I think,

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bargaining over the information request without waiving the employer's objection to the certification.

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Do you believe that violates the statute also?

[00:14:01] Speaker 04:
No, because that would allow the union to at least resolve this question, because that would have been a form of bargaining.

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You really can't avoid as a form of bargaining, but it doesn't waive the right.

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But such bargaining is not practical because there's no way to piecemeal bargaining.

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But under the boards, just to continue the questions Judge Wilkins was asking you, under the board's new remedy, it will result in bargaining over, it'll result in one of two things, either bargaining,

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over the information request or an unfair labor practice, won't it?

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Isn't that what you want?

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No, because what we want is the information so that we can bargain a first contract rather than delay and interference with bargaining inherent and then trying to resolve additional questions.

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Remember, Your Honor, and I- When you make your argument that way, it just sounds like to me, the board has decided for

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whatever reasons, that procedurally this makes more sense than the previous rule.

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But I haven't seen yet why that creates a statutory problem.

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creates a statutory problem because this court has said repeatedly that you don't engage in piecemeal bargaining.

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You either bargain every subject or no subject because bargaining is not effective if the employer says, we're not going to bargain about that issue.

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We're not going to bargain about this issue.

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We're not going to provide that information because you can't bargain piecemeal.

[00:15:35] Speaker 06:
Well, then why follow up on Judge Taylor's question?

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Why then the dissent says,

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that the better remedy than what the majority wanted to do was to allow the employer to bargain and accommodation of any confidentiality issues with the union.

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That's piecemeal bargaining, isn't it?

[00:16:05] Speaker 04:
It is, and I didn't suggest in our brief that we agreed with that remedy either.

[00:16:10] Speaker 06:
Well, I'm just trying to understand what your position is as to whether or not

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that is a remedy that is consistent with the statute?

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Is it or isn't it?

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I really don't think it is.

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The reason I've explained that it's not effective.

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It's not going to do any good for either party because you're focusing upon a very limited sphere of certain policies that may or may not be confidential and you're not bargaining about the whole contract.

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So it doesn't do you any good, in my view, to do that.

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It's very impractical.

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And violates, again, this principle that the courts have recognized that inherent in the obligation to bargain in good faith is you bargain about all mandatory subjects.

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You can't pick and choose which subjects to bargain about because that interferes with the bargaining process.

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And just so that I'm clear,

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If the employer refuses to bargain over information requests or anything else, and the board ultimately considers that to have been an unfair labor practice, does the board consider, is the board required to consider the employer's confidentiality concerns, or are you saying that those concerns

[00:17:35] Speaker 06:
aren't considered at all by the board because they have been waived?

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If they've been waived, for example, if a union makes a request in a bargaining setting where there's no test of certification or withdrawal of recognition, and the union asks for it and the employer says, doesn't respond or refuses to provide at all, but doesn't offer the bargain about the confidentiality, it waives that right.

[00:17:58] Speaker 06:
So let's suppose the union had requested

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you know, customer complaints, but it also requested the personnel files of all members of management, just for the sake of this hypothetical.

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You're saying that if the employer later loses its challenge to the certification, it has to turn over all of the documents that the union requested, including the personnel files of all members of management?

[00:18:28] Speaker 04:
No, because there's a different issue triggered, Your Honor, by that question, which is relevance.

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Management personnel files are not presumptively relevant.

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The union would have to show some relevance.

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But in this case, remember, the board found the union's request for these policies relevant.

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So you'll get to the next question.

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Okay, it's relevant.

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You normally have to provide an employer if you've got some confidentiality concerns.

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you either need to waive it or agree to bargain and resolve that question.

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So there's some things that are not relevant to bargaining and the board would not issue complaint and we would not be entitled to it.

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And that's seen in this case where the board found, for example, that social security numbers weren't relevant and didn't order their production.

[00:19:10] Speaker 06:
So relevance isn't waived, but confidentiality is waived?

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That's right.

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Why does that make sense?

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So let's suppose then,

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You have, you know, proprietary documents about, you know, security, um, um, how slot machines work, et cetera.

[00:19:31] Speaker 06:
Um, trade secrets.

[00:19:34] Speaker 06:
Yeah.

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Trade secrets.

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Those get turned over, um, without any sort of requirement that they be kept confidential by the union.

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The union could sell them to the highest bidder or do whatever it wants with them, post them on the internet.

[00:19:49] Speaker 04:
I understand that theoretically there could be some abuse here, but the board hasn't referred in its decision to any abuse by a union ever in getting this kind of information.

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And remember, that would be contrary to the union's interest to do that because it represents slot techs in five casinos and to do anything to undermine their job, their relationship with their employers would be contrary to the union's position.

[00:20:13] Speaker 04:
And keep in mind again, this is a circumstance where theoretically these slot techs already know these policies.

[00:20:19] Speaker 06:
But the slot text are under some sort of confidentiality obligations that are a part of their employment relationship, correct?

[00:20:28] Speaker 04:
We don't know that.

[00:20:29] Speaker 04:
The problem in this case, Your Honor, is, among other things, that under traditional board law, if you have a confidentiality concern and you want to raise it, you've got to provide some evidence.

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All the employer did in this case was simply state in its response in order to show cause, oh, these are confidential.

[00:20:45] Speaker 04:
No factual information, no evidence.

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in our position, having failed to do that, that's a waiver.

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And in the other three casino cases dealing with this, including NP Palace 1, the board said, that's not

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It doesn't effectively raise confidentiality because it's just a generalized concern for confidentiality without providing any specifics as to why it's confidential.

[00:21:11] Speaker 04:
No evidence, nothing.

[00:21:13] Speaker 04:
We don't know whether these policies are posted to the public in the casino when you walk in and say, here are the rules of the road.

[00:21:19] Speaker 04:
Don't forget we're watching you.

[00:21:21] Speaker 04:
And we don't know that the slot text are under any formal or informal

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confidentiality provision, and we don't know whether these are just the rules of the Nevada Gaining Commission.

[00:21:30] Speaker 04:
We know nothing about them.

[00:21:31] Speaker 03:
You can still bargain over the questions you just raised, can't you?

[00:21:37] Speaker 04:
Yes.

[00:21:37] Speaker 04:
For example, we can bargain about providing these.

[00:21:41] Speaker 04:
Right.

[00:21:42] Speaker 03:
Now that the question of the validity of the unit has been settled, the answer is for you to go back and bargain.

[00:21:53] Speaker 04:
That's true, we can go back and bargain, but when we sit down the table and bargain, we say, by the way, there's still this information question we didn't get.

[00:22:02] Speaker 04:
Okay, let's bargain about all the confidentiality issues, what we're gonna give you, what we're not gonna give you.

[00:22:08] Speaker 04:
And we say, wait a minute, we wanna bargain about everything.

[00:22:11] Speaker 04:
And now you've shut us off a different path when we should have had this information to start rather than delay the bargaining process

[00:22:22] Speaker 04:
from the get-go in the first contract, then we've got a year before theoretically the employer can withdraw recognition.

[00:22:28] Speaker 04:
So this becomes an interference again with this basic concept that when you withdraw recognition, you don't bargain after a certification.

[00:22:36] Speaker 04:
You don't recognize a unit successorship situation.

[00:22:39] Speaker 04:
It's either you bargain or you don't bargain.

[00:22:41] Speaker 04:
You provide relevant information.

[00:22:43] Speaker 04:
where you don't provide relevant information and you waive your right if you don't offer to bargain about unilateral changes information.

[00:22:51] Speaker 04:
That's the way the entire system works.

[00:22:53] Speaker 04:
And the board has never carved out an exception until this time, this case to that concept that the union has to bargain about, I mean, the employer has to bargain about all mandatory subjects and provide all relevant information.

[00:23:10] Speaker 04:
I see my time is quite up here.

[00:23:14] Speaker 05:
Unless either of my colleagues has any more questions, we'll hear from you.

[00:23:17] Speaker 06:
Judge Taylor, I had a question about the custom complaints.

[00:23:21] Speaker 06:
Why is that ripe and final for us at this point?

[00:23:27] Speaker 06:
Why do we have jurisdiction to decide this issue?

[00:23:31] Speaker 04:
It's because there is a balancing test.

[00:23:34] Speaker 04:
I understand that.

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And the balance falls in our favor here strongly because

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as to these customer complaints, we don't get them.

[00:23:43] Speaker 05:
I don't think that's the question Judge Wilkins asked you.

[00:23:48] Speaker 05:
The board says this isn't final because it's been remanded to the board.

[00:23:53] Speaker 05:
It's been remanded to the regional office to decide whether or not the information requested is confidential or not.

[00:24:04] Speaker 04:
In other words, it's not final.

[00:24:06] Speaker 04:
It's right, relying upon this court's decision in the OCW case, it held that were an employer delayed providing the information that was a harm to the union and it's more of a harm to the union in this case.

[00:24:21] Speaker 04:
Because not only is it delayed potentially for years, just as it not as extremely OCW case is still delayed, but also the board has narrowed the circumstances under which we can get customer complaints to only those circumstances where there's been some adverse impact on the employees.

[00:24:38] Speaker 04:
For example, we can't get that information now for training purposes or to find out why you didn't discipline people.

[00:24:45] Speaker 04:
So the board has narrowed the circumstances and delayed both of which are a harm.

[00:24:50] Speaker 04:
I'm sorry, I'm confused.

[00:24:52] Speaker 05:
I thought the only thing the board decided with respect to customer complaints was that they're no longer presumptively relevant.

[00:24:59] Speaker 04:
No, I think they decided they're presumptively relevant when the customer complaint

[00:25:05] Speaker 04:
has an impact such as discipline, or you don't get a wage increase.

[00:25:10] Speaker 04:
They said otherwise, it's not presumptively relevant, then they're relevant.

[00:25:14] Speaker 04:
They're relevant.

[00:25:16] Speaker 04:
But I think once you say relevant, for this purpose, it means presumptively relevant.

[00:25:21] Speaker 04:
And as long as we can show what they said was as long as there's some evidence that the customer complaint had that kind of an impact, it becomes relevant, presumptively relevant.

[00:25:36] Speaker 05:
Judge Wilkins, do you have an answer to your question there?

[00:25:40] Speaker 06:
I'm not sure that I do, but I have no further questions.

[00:25:47] Speaker 02:
OK.

[00:25:47] Speaker 02:
Judge Randolph?

[00:25:49] Speaker 03:
Oh, I don't.

[00:25:49] Speaker 06:
OK.

[00:25:51] Speaker 01:
OK.

[00:25:52] Speaker 01:
Thank you.

[00:25:52] Speaker 01:
We'll hear from the board.

[00:25:53] Speaker 01:
Good morning.

[00:25:57] Speaker 01:
I'm Heather Beard for the board, and we're here to seek some reinforcement of our order against the casino and denial of the union's petition for review.

[00:26:06] Speaker 01:
So as you've been discussing, what the board did here in this case is revise a remedy in information request cases such as this, where the employer has asserted a confidentiality or any other legitimate interest in requested information while it's pursuing judicial review of a union certification.

[00:26:26] Speaker 01:
And as the board thoroughly explained,

[00:26:29] Speaker 01:
The new accommodative bargaining remedy reconciles past conflicting precedent and does appropriately balance the competing equities between the employer and the union that are at stake.

[00:26:42] Speaker 01:
And here the board reasonably applied its new remedy in which the casino timely asserted its legitimate confidentiality interest in information related to security and precautions against illegal gambling.

[00:26:54] Speaker 01:
So to begin with,

[00:26:57] Speaker 01:
discussion that Judge Wilkins was having with my esteemed opponent, Mr. Rosenfeld here, with regard to the dilemma.

[00:27:05] Speaker 01:
I believe that the union concedes that in these situations, there is conflicting precedent or this dilemma, or as the board called it, a catch-22 between, on the one hand, if an employer has to offer to accommodate an interest such as confidentiality, this court and other courts, because the board has held,

[00:27:26] Speaker 01:
That means no longer can the board challenge or test certification because it must offer to accommodate such an interest.

[00:27:35] Speaker 01:
And in doing so, it then takes a step into bargaining, which waives its ability to test which it's right to test certification.

[00:27:45] Speaker 01:
And in this case, all the board did is say, you know, we're still going to put the employer on the hook for a violation.

[00:27:52] Speaker 01:
There is still a violation of the act, even if,

[00:27:55] Speaker 01:
the employer does not offer to accommodate in something that they claim they have a confidentiality interest in.

[00:28:03] Speaker 06:
Let me interrupt you for one second.

[00:28:05] Speaker 06:
Sure.

[00:28:05] Speaker 06:
Just to be clear on what the board's position is.

[00:28:09] Speaker 06:
So is it your position that if the employer says, you've asked for 10 things, and I'm willing to give you all of those 10 things, so long as you sign this confidentiality agreement union,

[00:28:23] Speaker 06:
But if you're not willing to sign that, then I'm not going to give you those things.

[00:28:29] Speaker 06:
That is an accommodation.

[00:28:31] Speaker 06:
That's a step into bargaining and that waives their right to challenge certification later.

[00:28:37] Speaker 01:
Yes.

[00:28:39] Speaker 06:
Okay, continue.

[00:28:41] Speaker 01:
So given that that is what the law is, what the board did within its discretion,

[00:28:48] Speaker 01:
to assess remedies under 10C of the act and to provide a remedy so long as it's not contrary to the act, the board decided that in this narrow circumstance where there is a dilemma such as this, and there are particularly with confidentiality interests in the Detroit Edison case, when the Supreme Court has said that the board should not craft a remedy without due concern to confidentiality interests, the board, particularly cognizant of that, decided

[00:29:17] Speaker 01:
that it will still find a violation.

[00:29:19] Speaker 01:
But what it will do is allow the employer if and only if it presents a legitimate, and there's the check on just any sort of claim, a legitimate confidentiality interest.

[00:29:31] Speaker 01:
For example, here, where it's clear on its face that should a casino have to turn over security, trade secrets, money laundering, prevention, those types of things.

[00:29:41] Speaker 06:
But let me interrupt you again.

[00:29:44] Speaker 06:
So prior to this case,

[00:29:47] Speaker 06:
If a union refused to bargain at all and refused to provide any information because doing so might waive their rights to challenge the certification.

[00:30:00] Speaker 06:
And the union brought the, well, an unfair labor practice was found.

[00:30:08] Speaker 06:
At that point, the board could order that documents would be turned over, right?

[00:30:16] Speaker 01:
That's correct.

[00:30:16] Speaker 01:
The board would order that.

[00:30:17] Speaker 01:
That's true.

[00:30:18] Speaker 06:
But under Detroit Edison, wouldn't the board have to give due regard for confidentiality anyway at that point?

[00:30:26] Speaker 06:
I just don't understand where this waiver of confidentiality comes from.

[00:30:32] Speaker 01:
Sure.

[00:30:32] Speaker 01:
Well, under Detroit, and in Detroit Edison case, it was not, first of all, a case where there was the test of certification also ongoing.

[00:30:40] Speaker 01:
So the difference there is,

[00:30:43] Speaker 01:
that there's a different sort of, there would be a test for confidentiality that would have to take place.

[00:30:48] Speaker 01:
However, if there was a, not only would there have to be a confidentiality interest shown by the employer, but even under Detroit Edison, under board law, the board, rather the company would have also had to offer to accommodate, accommodate the confidentiality interest at the time the request was made.

[00:31:10] Speaker 01:
And that's where the conflict in this case and those

[00:31:13] Speaker 01:
where there's a test of certification pending comes in, because in a test of certification, if you also have to offer to accommodate, then you're going to lose your ability to test the certification.

[00:31:25] Speaker 06:
And why not just get rid of that part of the board law and problem solved?

[00:31:31] Speaker 01:
I'm sorry, your honor.

[00:31:32] Speaker 01:
I guess I'm not sure which part of the board law.

[00:31:35] Speaker 06:
The fact that if you don't offer to accommodate at that point, there's a waiver.

[00:31:42] Speaker 01:
Well, the board decided that the best way to reconcile, and as Mr. Rosenfeld said, there are courts, including this one, who have held that any step toward bargaining, such as accommodative bargaining like that, loses that right.

[00:31:55] Speaker 01:
The board has said, well, we can't make the courts of appeals change their precedent on that.

[00:31:59] Speaker 01:
But what we can do is strike a narrower solution that actually solves the problem while maintaining both the union's ability to later bargain specifically over that information

[00:32:11] Speaker 01:
and allow the employer to challenge the certification?

[00:32:15] Speaker 06:
Well, I think I may not have asked my question clearly.

[00:32:18] Speaker 06:
So my understanding is that before this case, what would happen if an employer refused to provide information, refused to bargain over providing information, and it was later found to have committed an unfair labor practice

[00:32:40] Speaker 06:
for doing so and any challenge to the certification was rejected.

[00:32:48] Speaker 02:
Okay.

[00:32:49] Speaker 06:
Then at that point, the board would simply order the production of the information that had been requested.

[00:32:57] Speaker 01:
Yes, that's correct.

[00:32:58] Speaker 06:
There wouldn't be any bargaining over it.

[00:33:00] Speaker 06:
The board would just order.

[00:33:02] Speaker 01:
That's correct.

[00:33:06] Speaker 06:
Wouldn't the board at that point have an obligation under Detroit Edison to consider the employer's confidentiality concerns, even if the employer hadn't hadn't sought an accommodation or bargained earlier?

[00:33:28] Speaker 01:
There wouldn't be, Your Honor, I don't believe there would be that sort of obligation or any process if there was such an obligation because of the way that the law stood at the time prior to this case.

[00:33:39] Speaker 01:
And so the board, rather than overturn, I believe, that precedent, which there is a good reason for a violation to be found when an employer starts to bargain down one path while at the same time challenging a certification.

[00:33:54] Speaker 01:
That particular piece, that violation overall,

[00:33:58] Speaker 01:
is there so that an employer can't, for example, start bargaining and then pull the rug out from under the union by saying, well, actually, your certification is bad.

[00:34:07] Speaker 01:
So there's good reasons why that constitutes a violation.

[00:34:10] Speaker 01:
But the beauty of what the board did here is that in changing the remedy for specific cases in which there is a mechanism, a legitimate, in a pleading where there has been a showing by an employer that there's a legitimate confidentiality interest

[00:34:27] Speaker 01:
they won't, they will no longer be ordered to simply turn over the information without that mechanism to preserve an interest that they may have shown that is legitimate.

[00:34:37] Speaker 01:
And so that's what the board chose to do here.

[00:34:40] Speaker 06:
I guess all I'm saying is that why is there anything inconsistent with the statute for the board to just say that from now on when

[00:34:56] Speaker 06:
if an employer refuses to provide information and that's found to be an unfair labor practice, we will order turning over the information, but we will no longer rule that the employer has waived any confidentiality objections or protections that it has.

[00:35:20] Speaker 06:
We will just simply take that into account.

[00:35:23] Speaker 06:
when we ordered a production of the documents and order them subject to whatever confidentiality requirements are appropriate in that case.

[00:35:39] Speaker 01:
Sure.

[00:35:41] Speaker 01:
I think the board could have done something like that, but the problem with something like that, unlike here, is there wouldn't then be a mechanism for the board to

[00:35:49] Speaker 01:
to adjudicate that confidentiality interest in the way that this type of a narrow remedy correction does, because now there can actually be bargaining over the scope of that.

[00:36:01] Speaker 01:
And that could be worked out by the parties, which is something that the act contemplates it would prefer, rather than a separate unfair labor practice proceeding.

[00:36:08] Speaker 01:
And therefore, under what you have posited, Judge Wilkins, there may not have been any sort of interest then.

[00:36:14] Speaker 01:
The employer would not have to show

[00:36:16] Speaker 01:
during the course of anything leading up to the board issuing its order, any confidentiality interest.

[00:36:22] Speaker 01:
And then it seems to me the parties would have to start over from even an earlier point, which would delay things further.

[00:36:29] Speaker 01:
So I think the board's choice here, which was well within its ambit to do, to continue to find a violation and yet to, in certain circumstances,

[00:36:40] Speaker 01:
change the remedy actually does best fulfill the interests of the employer and the union in these circumstances.

[00:36:46] Speaker 01:
Does that answer your question?

[00:36:48] Speaker 06:
Well, what about all of the various forms of prejudice that petitioner says that

[00:36:55] Speaker 06:
this places it in, particularly its inability to really get started with the bargaining and really represent the union effectively because it can't get basic information that it needs to begin that process.

[00:37:13] Speaker 01:
Sure.

[00:37:13] Speaker 01:
I mean, the board wasn't ignorant of that, nor the board actually discussed that at some length in its reasoned decision.

[00:37:20] Speaker 01:
I believe it was on page six of the board's

[00:37:24] Speaker 01:
the board's decision in order, where they said that they recognize that there may be some delay, even after the certification is upheld.

[00:37:33] Speaker 01:
But the delay, as they noted, can only happen where there's been an asserted confidentiality interest that it's deemed to be legitimate.

[00:37:41] Speaker 01:
And given that in this instance, there was such a legitimate interest that was identified, the board found that it's going to choose not to ride roughshod over the confidentiality interest,

[00:37:54] Speaker 01:
to allow there to be accommodative bargaining.

[00:37:56] Speaker 01:
And I do think that it's possible even if the board has, even if bargaining has begun and not over this information for the parties to get started.

[00:38:05] Speaker 01:
I mean, that's what the board was trying to do.

[00:38:07] Speaker 01:
This was a summary judgment motion that the board was trying to push forward as much as it could so that the certification issue could be resolved.

[00:38:18] Speaker 01:
And therefore the, you know, holding up just part of the information

[00:38:22] Speaker 01:
was something that the board considered as not too prejudicial to the union, while at the same time allowing the employer to- Is there anything in the record to indicate whether these slot technicians sign non-disclosure agreements with the employer?

[00:38:42] Speaker 01:
I'm not sure.

[00:38:43] Speaker 01:
I don't believe there is.

[00:38:45] Speaker 01:
I'm not aware of them being any.

[00:38:50] Speaker 03:
But I do know that- The reason I ask that is the union is not totally without resource in getting ready to bargain because it has available all the employees to talk to to find out what, assuming that there is something that can be said about the policies rather than violating a non-disclosure agreement, the union is totally free to talk to its members to get information.

[00:39:17] Speaker 01:
That's correct.

[00:39:18] Speaker 01:
And in fact, if during the course of the accommodative bargaining, the parties can resolve it and the union can agree, well, we don't need X, Y, or Z, or the company can say, what if we give you A, B, and E?

[00:39:30] Speaker 01:
And they can resolve those kinds of things.

[00:39:32] Speaker 01:
Even had there been some sort of nondisclosure agreement, anything can be, hopefully, and that's the hope, can be worked out in bargaining.

[00:39:40] Speaker 01:
And to the extent that right here, this solution that the board has

[00:39:45] Speaker 01:
has crafted preserves precedent in the circuit courts as well as preserves the fact that there is a violation of the act, but also just the remedy makes it such that any legitimate interest that an employer would have to offer to accommodate is no longer something that has to be done such that the employer waives its right.

[00:40:07] Speaker 06:
So we think that- How does it work if

[00:40:10] Speaker 06:
The employer and the union bargains over confidentiality and they can't reach an agreement, but the employer is acting in good faith and the union is acting in good faith, but they just can't reach an agreement.

[00:40:24] Speaker 06:
Right.

[00:40:24] Speaker 06:
Or have any authority to resolve it or is it just the employer never turns anything over because it was acting in good faith and they couldn't, they couldn't, the bargaining didn't reach a conclusion.

[00:40:38] Speaker 01:
If there was a good faith impasse and there is no charge filed by the general counsel that this was somehow a violation of the duty to bargain, then yes, you are correct.

[00:40:48] Speaker 01:
Then if whatever the employer has agreed to or not at that time, should there not be an unfair labor practice complaint, that's correct, would not be turned over.

[00:40:56] Speaker 01:
But the hope is, given the bargaining process as there always is, that there would be some give and take and that something would be resolved.

[00:41:03] Speaker 01:
Or if the employer was acting, I mean, the check on the employer

[00:41:07] Speaker 01:
deciding to not act in good faith is exactly as the board contemplated an unfair labor practice charge, where that could be litigated such that the information, the board and then the court could decide whether it was required to be turned over.

[00:41:23] Speaker 06:
But thank you.

[00:41:25] Speaker 06:
And what about the authority and the precedent saying that the board can weigh confidentiality interests itself?

[00:41:36] Speaker 06:
in the compliance proceeding or, um, in conjunction with just in order to turn over documents, isn't there precedent that says that?

[00:41:47] Speaker 01:
Sure.

[00:41:47] Speaker 01:
And the board recognized that its decision, there's one case which it is otherwise never, the board has never followed its traditional practice has been what the precedent had been before, which is allowing it to be turned over.

[00:41:59] Speaker 01:
And the board just decided that the better way to go would be to handle it the way that it did in this case.

[00:42:04] Speaker 01:
And indeed,

[00:42:05] Speaker 01:
There was no, I would point out as we did in our brief, the union never raised that particular claim or objection to the policy choice of the board and its motion for reconsideration.

[00:42:16] Speaker 01:
So our position is that would be jurisdictionally barred from this court's consideration.

[00:42:20] Speaker 01:
But nonetheless, yes, the board did consider that and decided it was better overall for labor law policy to implement the decision and remedy that it did here.

[00:42:32] Speaker 05:
I want to ask you something about the board's decision that employee complaints are no longer presumptively relevant.

[00:42:43] Speaker 05:
Sure.

[00:42:45] Speaker 05:
You say that's not final.

[00:42:47] Speaker 05:
Correct.

[00:42:47] Speaker 05:
Right?

[00:42:49] Speaker 05:
Because it's gone back to the region.

[00:42:52] Speaker 05:
But the union says in its reply brief that if the region rules against it, it has

[00:43:01] Speaker 05:
There's no way to challenge that issue.

[00:43:03] Speaker 05:
There's no appeal.

[00:43:04] Speaker 01:
That's correct.

[00:43:05] Speaker 01:
Isn't that right?

[00:43:06] Speaker 01:
Sure.

[00:43:07] Speaker 01:
In the very unlikely chance that in this instance, the region or the general counsel didn't issue a complaint if the company challenges the relevance of a more specific and demonstrated relevance interest.

[00:43:20] Speaker 01:
While it's true, if there is no complaint issue, that is unreviewable.

[00:43:25] Speaker 01:
The test in terms of ripeness, we talk about ripeness, is whether

[00:43:29] Speaker 01:
the harm to the petitioner outweighs the board's interest in having the benefit of crystallizing its decision, its reasoning.

[00:43:41] Speaker 05:
But in rightness, when a court finds something isn't right, implicit in that finding is that the issue can come up later.

[00:43:56] Speaker 05:
Their point is that it can't here.

[00:44:01] Speaker 05:
That if the region, when this goes back, concludes that these are not relevant, they'll have no appeal.

[00:44:10] Speaker 05:
So this is their only shot at that issue.

[00:44:14] Speaker 05:
So why aren't they right that it's final?

[00:44:17] Speaker 01:
Sure.

[00:44:18] Speaker 01:
The board's position is that simply because there is a very small risk that there would not be any complaint issued should there not be information provided here, then the fact that the union wouldn't get to challenge the decision doesn't outweigh the fact that this issue is not one for which the board has issued a final decision.

[00:44:39] Speaker 01:
Do you have a case that supports that?

[00:44:41] Speaker 01:
The case that we cite in our brief.

[00:44:44] Speaker 01:
Pardon me?

[00:44:45] Speaker 01:
I'm sorry, I said that the case that we cite in our brief, the sheet metal case that we talk about in terms of when, if there is an issue and it comes back, if it comes back up, then the board would be able to further crystallize its decision on what is presumptive versus what is not presumptive, but yet is relevant.

[00:45:04] Speaker 01:
And as we've said in our brief, should the court disagree, right?

[00:45:08] Speaker 01:
As you agree, it might not be able to come back up.

[00:45:11] Speaker 05:
That's correct.

[00:45:12] Speaker 05:
A very small change.

[00:45:14] Speaker 05:
Okay, but even if there's a small chance, doesn't that mean this is final?

[00:45:19] Speaker 05:
And then I asked you for a citation for the proposition that, well, yes, it's final because there's only a remote chance that the union won't succeed before the region.

[00:45:33] Speaker 05:
That's what you're basically telling us.

[00:45:35] Speaker 05:
You're saying, don't worry about this.

[00:45:39] Speaker 05:
There's only a remote chance that the union won't succeed in the region, right?

[00:45:44] Speaker 01:
That's correct.

[00:45:44] Speaker 01:
And I don't have a specific site for that specific proposition.

[00:45:48] Speaker 01:
I don't know one either.

[00:45:49] Speaker 01:
That's what's troubling me here.

[00:45:52] Speaker 01:
OK.

[00:45:53] Speaker 01:
To the extent that we are saying that the test, as we understand it, for ripeness and for finality would not correct.

[00:46:02] Speaker 05:
OK.

[00:46:02] Speaker 05:
All right.

[00:46:03] Speaker 05:
OK.

[00:46:04] Speaker 05:
Judge Wilkins or Judge Randolph, anything else?

[00:46:06] Speaker 05:
No.

[00:46:07] Speaker 06:
No.

[00:46:07] Speaker 05:
OK.

[00:46:09] Speaker 05:
Mr. Rosenbaum, you have time, but you can take two minutes.

[00:46:14] Speaker 05:
if you need it.

[00:46:18] Speaker 04:
Judge Wilkins, you asked a fair question about why the union can't go to its members.

[00:46:23] Speaker 04:
I think there's a pretty clear answer.

[00:46:25] Speaker 04:
The members may not know, they may have conflicting views, and the board has always held that if a union has an alternative source that doesn't excuse the employer from providing its version of what these rules are.

[00:46:38] Speaker 04:
And Judge Wilkins, I think you've asked sort of a fair question about, is there a way of resolving it?

[00:46:44] Speaker 04:
And Ms.

[00:46:45] Speaker 04:
Breed is correct that I didn't specifically say there's this compliance proceeding, but the sheet metal workers case that Judge Taylor referred to was a situation where the issue of back paying money only was going back to a compliance proceeding with the issue of burdens of proof could be raised and litigated.

[00:47:03] Speaker 04:
Theoretically, what the board could have done in this case, and I think is still available is to say, all right, we're ordering the production of these documents and we're gonna leave to a compliance proceeding any issues about confidentiality or other issues that were raised by the employer in a compliance proceeding.

[00:47:23] Speaker 04:
And that's what Detroit Edison says in all the confidentiality cases, they say, and this court has already recognized this in the OCW case,

[00:47:32] Speaker 04:
that if the parties can't resolve it negotiations, the union files an unfair labor practice charge.

[00:47:38] Speaker 04:
And then the interests are balanced.

[00:47:40] Speaker 04:
The employer's interest in confidentiality is balanced against the union's interest in need.

[00:47:45] Speaker 04:
And if the balance is in favor of the union, the board orders the employer to turn it over.

[00:47:51] Speaker 04:
And that process is the way the board does it.

[00:47:54] Speaker 04:
That could have been a solution to this problem here to give the union a fair chance to resolve it.

[00:48:01] Speaker 04:
Just I want to conclude.

[00:48:02] Speaker 04:
I recognize that there's some attractiveness to the board's position here because it avoids the rock and a hard place the employer put itself in.

[00:48:10] Speaker 04:
But the statute says that's its choice.

[00:48:12] Speaker 04:
It either bargains or doesn't bargain, can't go halfway because that would infect all sorts of other regimes of the act dealing with bargaining.

[00:48:22] Speaker 04:
Thank you.

[00:48:24] Speaker 04:
All right.

[00:48:24] Speaker 04:
Okay, thank you.

[00:48:25] Speaker 04:
Ms.

[00:48:25] Speaker 04:
Beard, Mr. Rosenbaum, thank you both.

[00:48:27] Speaker 04:
The case is submitted.

[00:48:29] Speaker 04:
Thank you.